June 1, 2020
Once again, journalists find themselves at the intersection of indispensability and danger. You are uniquely poised to be the eyes and ears of the public, to stand in their shoes, to report without fear or favor. But how do you do that during a pandemic – possibly with a curfew — while dodging rubber bullets, tear gas and the hands of enforcement officials?
Some legal background of your rights is outlined below. As a practical matter, though, you can best protect your rights by doing a few things in advance and having some things on hand. Here are a baker’s dozen of things to do and take.
1. Make it unmistakably clear — through clothing, hats, stickers on gear or anything else you have — that you are with the media.
2. Be sure you have your driver license or other official photo ID with you.
3. If you have “press credentials,” carry those with you at all times.
4. If you have a business card with your name and affiliation, pack several cards in case you need to give them to more than one officer.
5. If you have a copy of your local law enforcement’s media policies, keep one or two copies of that in your backpack or otherwise with you.
6. Keep in your pocket or backpack one or two copies of any official orders that give you exemptions from orders that otherwise would ban you from being on the streets.
7. If you have the ability to periodically download images or other material you gather from your phone or camera, bring spare drives to put them on just in case your equipment is seized. If you don’t have the ability to download or offload, but you can periodically email materials to yourself, your editor or your news director, do that.
8. If you’re reporting as part of a team, have a plan in place to alert one another if a member of the team ends up in a bad place, either with law enforcement or protesters. The other team member can record the encounter (which is legal, by the way) and get in touch with your editor or news director if need be.
9. If possible, have a member of your team carry some spare cash (for bail, if needed).
10. If a confrontation goes south, resulting in your arrest, don’t resist arrest. It’s fine to politely and respectfully reiterate that you are with the media and protected in what you are doing. But both your physical safety and your legal position are best served by a swift legal challenge to the violation of your rights rather than an attempt to stop it real-time. With that said, if you’re recording video or audio when confronted, don’t stop recording.
11. Carry with you a card that has the contact numbers of anyone you might need to call (including your lawyer). Having that information stored in your phone isn’t good enough. You may need to hand the information card to someone who can act on your behalf if you’re in handcuffs and your phone is in an officer’s hands. Be sure to include on your list not only your editor or news director and your lawyer but also your spouse or partner and your mom. Again, just in case.
12. Pack at least a modest first aid kit. With shattered glass flying and unruly crowds running, it’s quite possible you might need it. While you are at it, put some spare masks in your backpack or bag. I’ve noticed more than one reporter who lost his or hers to the melee.
13. It goes without saying, but of course don’t forget to pack portable battery packs for your equipment. And don’t forget the water and power bars. Long days will drain both you and your equipment of energy.
GENERAL BACKGROUND ON YOUR RIGHTS
Where You Can Be
In ordinary times, your rights are the same as those of the public. You have a right to be – and to photograph and record (audio and video) – anywhere the general public has a right to be plus anywhere to which you have been given special access. This is particularly important right now. If an article tells a story, and a picture speaks a thousand words, how many words does a video speak?
Many cities and counties have “media policies” that delineate what your rights are at a crime scene or accident scene. If you have a copy of your law enforcement’s media policy, print it out and put it in your pocket, backpack or bag. If you don’t, make a note to get a copy when you get the chance to breathe. For example, the Raleigh Police Department media policy underscores the media’s right of access to public property and provides:
In some instances, such as parades, rallies, and demonstrations, media representatives with appropriate press credentials may be admitted past police or fire barricades and roadblocks that have been established to restrict entry by the general public. Such access will not be afforded to crime scenes or areas determined to pose unreasonable risk to health or public safety.
In extraordinary times, you may have rights that are specially protected. In North Carolina, media have been deemed essential in the Governor’s state of emergency orders, meaning you have greater access and freedom than the non-media citizens. Right now, some cities and counties have exempted media from curfews that have been declared. This is especially important to keep you there, on the street, reporting and documenting what happens while those of us curfew-abiding citizens stay at home.
Search and Seizure
Though you probably have the First Amendment committed to memory, you should also brush up on the Fourth. You have a right to be free from unreasonable searches and seizures. If law enforcement officers have an objective, reasonable belief that you are armed and dangerous, it is not unconstitutional for them to briefly “detain and frisk” you for weapons. But they cannot do so on a whim.
If you are arrested, law enforcement can search the area within your immediate control from which you could reach a weapon or destroy evidence. That does not necessarily include a right to “search” your cell phone or camera. They ordinarily can take your belongings but there are good arguments that they must get a warrant to actually search (look at) them. The Reporter’s Committee suggests that you rehearse a polite resistance to search and seizure such as, “I’m a journalist, and my equipment and its contents belong to my company. If you want to access it, you will first need to contact their attorney.”
If you have specific questions about any of these issues, email for more information: [email protected]
For even more detailed discussions, see these excellent resources: