Press Freedom Archives - Columbia Law Review

Introduction In the video, a line of police officers advances left-to-right across the screen. Behind the camera is Tara O’Neill, a newspaper reporter in Bridgeport, Connecticut.[footnote]Tara O’Neill (@Tara_ONeill_), Twitter (May 9, 2019, 10:16 PM), https://twitter.com/Tara_ONeill_/status/1126672343437336576 (on file with the Columbia Law Review ) [hereinafter O’Neill, Arrest Video].[/footnote] For two years, O’Neill had covered the fallout from the fatal police shooting of fifteen-year-old Jayson Negron.[footnote]See Tara O’Neill, For Bridgeport Reporter, Handcuffs Weren’t Supposed to Be Part of the Deal, Conn. Post (May 11, 2019), https://www.ctpost.com/local/ctpost/article/For-Bridgeport-reporter-handcuffs-weren-t-13836844.php [https://perma.cc/U5B8-TSPU] [hereinafter O’Neill, Handcuffs]. Negron was shot four times by police officer James Boulay following a confrontation in which Boulay was allegedly struck by a car, driven by Negron, which had been reported stolen. See Report of the State’s Attorney for the Judicial District of Waterbury Concerning the Death of Jayson Negron in the City of Bridgeport on May 9, 2017, Conn. State Div. of Crim. Just., https://portal.ct.gov/DCJ/Whats-News/Reports-on-the-Use-of-Force-by-Peace-Officers/2017—May—Jayson-Negron—Bridgeport#_ftnref1 [https://perma.cc/2FBA-ZUPP] [hereinafter Negron Report] (last visited Sept. 2, 2020). Bridgeport police were criticized for their conduct following the shooting; in particular, police left Negron’s body on the pavement for nearly six hours and did not seek medical attention for him, even though a bystander video showed a handcuffed Negron arguably still alive. See Jamiles Lartey, Family of Connecticut Teenager Shot Dead by Police: We Have Been Lied To, Guardian (May 15, 2017), https://www.theguardian.com/us-news/2017/may/15/connecticut-teenager-shot-dead-police [https://perma.cc/863X-424J]. State attorneys ultimately concluded Boulay’s use of deadly force was justified. See Negron Report, supra.[/footnote] She chronicled the community backlash against the Bridgeport Police Department, including allegations of misconduct.[footnote]See Tara O’Neill, Rally to Be Held in Hartford for Jayson Negron, Conn. Post (Nov. 27, 2017), https://www.ctpost.com/local/article/Rally-to-be-held-in-Hartford-for-Jayson-Negron-12383158.php [https://perma.cc/MM7C-HM7X].[/footnote] In May 2019, O’Neill covered a protest on the anniversary of Negron’s death.[footnote]O’Neill, Handcuffs, supra note 2.[/footnote] When police attempted to disperse a group of demonstrators, O’Neill started to film on her phone.[footnote]Id.[/footnote] In the video posted to Twitter, a police officer orders O’Neill to move as the camera pans toward the ground.[footnote]O’Neill, Arrest Video, supra note 1.[/footnote] O’Neill says she is standing on a public sidewalk and identifies herself as a reporter.[footnote]Id.[/footnote] The video cuts out. In the wake of this confrontation, O’Neill was arrested and taken to the Bridgeport police station; she was released without charges that night.[footnote]O’Neill, Handcuffs, supra note 2.[/footnote] One of her editors speculated the arrest was “retaliation and intimidation” for her coverage.[footnote]Christine Dempsey, Connecticut Post Reporter Detained While Covering Bridgeport Protest, Hartford Courant (May 10, 2019), https://www.courant.com/breaking-news/hc-br-bridgeport-reporter-detained-covering-protest-20190510-dyjltt4nwzc5ldv2huzflr6u3e-story.html (on file with the Columbia Law Review ).[/footnote] That journalists like O’Neill might come into conflict with police should hardly be surprising. Since the Founding, prominent theorists—including the First Amendment’s author, James Madison—have touted the “checking value” of the press in exposing government abuse.[footnote]See Vincent Blasi, The Checking Value in First Amendment Theory, 2 Am. Bar Found. Rsch. J. 521, 527 (1977) [hereinafter Blasi, Checking Value] (“[T]he most influential free-speech theorists of the eighteenth century—those who drafted the First Amendment and their mentors—placed great emphasis on the role free expression can play in guarding against breaches of trust by public officials.”); see also James Madison, The Report of 1800 (1800), reprinted in 17 The Papers of James Madison 303, 342 (David B. Mattern, J. C. A. Stagg, Jeanne K. Cross & Susan Holbrook Perdue eds., 1991) (arguing for a free press because the character of public officials “can only be determined by a free examination thereof, and a free communication among the people thereon”).[/footnote] Predictably, newsgatherers sometimes become targets for state retaliation—a fact underscored by the widespread harassment of journalists at protests following the killing of George Floyd by Minneapolis police in May 2020.[footnote]See Marc Tracy & Rachel Abrams, Police Target Journalists as Trump Blames ‘Lamestream Media’ for Protests, N.Y. Times (June 1, 2020), https://www.nytimes.com/2020/06/01/business/media/reporters-protests-george-floyd.html (on file with the Columbia Law Review ) (last updated June 12, 2020); see also U.S. Press Freedom Tracker (@uspresstracker), Twitter (Aug. 20, 2020, 1:01 PM), https://twitter.com/uspresstracker/status/1296492518704664580 (on file with the Columbia Law Review ) [hereinafter U.S. Press Freedom Tracker, 2020 Protest Incidents] (tracking more than 700 incidents of press harassment at protests following George Floyd’s killing).[/footnote] Since 2017, more than 150 journalists have been arrested in the United States.[footnote]Arrest/Criminal Charge, U.S. Press Freedom Tracker, https://pressfreedomtracker.us/arrest-criminal-charge [https://perma.cc/7RQD-TSRM] [hereinafter U.S. Press Freedom Tracker, Arrests] (last visited Sept. 2, 2020) (chronicling fifty-eight arrests of journalists between 2017 and 2019); U.S. Press Freedom Tracker, 2020 Protest Incidents, supra note 11 (noting at least one hundred reported arrests of journalists in the two-and-a-half-months following George Floyd’s death).[/footnote] This statistic does not account for arrests of ordinary citizens, including in overpoliced communities, who document police activity using cell phone cameras.[footnote]Cf. Jocelyn Simonson, Copwatching, 104 Calif. L. Rev. 391, 394 (2016) (describing the tactic of “copwatching,” whereby community members utilize cell phone filming and other techniques to “observe, record, and contest police practices and constitutional norms”).[/footnote] Though the Fourth Amendment requires that police have probable cause to make an arrest,[footnote]U.S. Const. amend. IV (“The right of the people . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . .”).[/footnote] this threshold is usually easy to meet.[footnote]See Cynthia Lee, Probable Cause with Teeth, 88 Geo. Wash. L. Rev. 269, 280 (2020) (discussing the Supreme Court’s “very mushy” definition of probable cause and observing that the Court has ruled for the government “on almost every single question involving probable cause”).[/footnote] And while professional and citizen journalists who are arrested often do not face charges, even “catch-and-release” detainments like O’Neill’s may prevent them from covering an event. In this sense, strategic or pretextual arrests of newsgatherers can function like prior restraints—a special class of restrictions that prevent the publication of speech on the basis of its content. Like prior restraints, arrests of journalists allow authorities to arbitrarily wield broad censorial power to suppress news before it reaches the marketplace of ideas.[footnote]See infra section I.C.[/footnote] A recent Supreme Court decision could make it more difficult for citizens exercising their First Amendment rights, including newsgatherers, to respond to pretextual arrests. In Nieves v. Bartlett , the Court held that, in most instances, the existence of probable cause for a crime will defeat as a matter of law a plaintiff’s First Amendment retaliatory arrest claim brought under 42 U.S.C. § 1983.[footnote]139 S. Ct. 1715, 1724–25, 1727 (2019).[/footnote] The Court created a “narrow” exception for cases involving atypical arrests—those in which officers “have probable cause to make arrests, but typically exercise their discretion not to do so.”[footnote]Id. at 1727.[/footnote] Nieves did not involve journalists or newsgathering.[footnote]See infra section II.B.1 (describing Nieves ’s factual background).[/footnote] Nonetheless, the ruling impairs the ability of professional and citizen reporters to bring federal civil claims that may help deter state suppression.[footnote]See David Greene & Karen Gullo, When Police Misuse Their Power to Control News Coverage, They Shouldn’t Be Allowed to Use Probable Cause as a Shield Against Claims of First Amendment Violations, Elec. Frontier Found. (Oct. 10, 2018), https://www.eff.org/deeplinks/2018/10/when-police-misuse-their-power-control-news-coverage-they-shouldnt-be-allowed-use [https://perma.cc/W8A4-D2NJ].[/footnote] The decision also threatens to undermine recent circuit court decisions recognizing a right of citizens to film police and government activities in public.[footnote]See Tim Cushing, Supreme Court OKs Retaliatory Arrests for Engaging in Protected Speech, Techdirt (May 30, 2019), https://www.techdirt.com/articles/20190529/19161642299/supreme-court-oks-retaliatory-arrests-engaging-protected-speech.shtml [https://perma.cc/JW53-53SN] (“Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut.”).[/footnote] Such a right may mean little if probable cause for any of an ever-expanding litany of criminal statutes will preclude a civil damages claim by those arrested while reporting on police activity.[footnote]See Erik Luna, The Overcriminalization Phenomenon, 54 Am. U. L. Rev. 703, 726 (2005) (arguing that the “all-encompassing nature” of today’s criminal codes “appears little different from a single statute declaring that law enforcement may pull over any car or stop any pedestrian at any time for any reason or, for that matter, no reason at all”); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 509 (2001) (“The end point of this progression is clear: criminal codes that cover everything and decide nothing, that serve only to delegate power to district attorneys’ offices and police departments.”).[/footnote] This Note charts a path forward from Nieves to vindicate the rights of professional journalists and citizen video recorders subjected to suspected pretextual arrests.[footnote]Of course, arrests are not the only tactic police may use to suppress newsgathering activity. At protests following the killing of George Floyd, journalists also described systematic efforts by police and federal authorities to target reporters using nonlethal munitions, such as rubber bullets and pepper spray. See, e.g., Jon Allsop, The Police Abuse the Press. Again., Colum. Journalism Rev.: Media Today (June 1, 2020), https://www.cjr.org/the_media_today/the-police-abuses-the-press-again.php [https://perma.cc/P4NE-SM56] (collecting incidents). Nieves dealt with only retaliatory arrests, however, and this Note restricts its analysis accordingly.[/footnote] Part I explores the First Amendment’s limited protections for newsgathering, as well as the recent judicial recognition of the right to film police. Part I also examines the special harms of retaliatory arrests for newsgatherers and argues that such arrests function like prior restraints when undertaken to prevent or delay the spread of news. Part II analyzes and critiques Nieves . It describes the challenges of proving improper animus in First Amendment retaliatory arrest cases and examines how those challenges informed the Court’s adoption of a no-probable-cause threshold. Finally, Part III proposes judicial and legislative solutions to better balance the First and Fourth Amendment interests at play in retaliatory arrest cases. In particular, it advances a commonsense reading of Nieves ’s atypical arrest exception that would preserve the ability of courts to adjudicate certain speech-related retaliatory arrest claims where probable cause is present. It also argues that Nieves ’s general no-probable-cause rule should not apply to retaliatory arrests of journalists and newsgatherers that act as prior restraints. Nieves has troublesome implications for all citizens, including protestors, who attempt to exercise First Amendment rights under threat of police suppression.[footnote]See, e.g., Anne Branigin, The Supreme Court’s Latest Ruling Makes It Easier for Cops to Arrest Black Lives Matter Protesters, Root (June 3, 2019), https://www.theroot.com/the-supreme-courts-latest-ruling-makes-it-easier-for-co-1835207570 (on file with the Columbia Law Review ).[/footnote] The unique institutional role of newsgatherers,[footnote]This Note uses “newsgatherers” as a catchall term encompassing professional journalists; citizens who gather news—usually via cell phone videos—for possible dissemination; and legal observers who monitor police and government activity, usually on behalf of legal organizations. See, e.g., NLG Legal Observer® Program, Nat’l Laws. Guild, https://www.nlg.org/legalobservers [https://perma.cc/86MK-PT42] (last visited Sept. 2, 2020). Admittedly, this definition is imprecise. When does a previously disengaged bystander who begins filming police on their phone become a “newsgatherer”? The question of who should legally be considered a “journalist” has been a frequent topic of debate. Compare Mary-Rose Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 Minn. L. Rev. 515, 520 (2007) (arguing that a testimonial privilege in trial proceedings “should apply to anyone disseminating information to the public”), with Sonja R. West, Awakening the Press Clause, 58 UCLA L. Rev. 1025, 1057 (2011) [hereinafter West, Awakening the Press Clause] (concluding that a more narrow class of professional journalists should receive special constitutional privileges). This Note adopts a broad definition of newsgatherers in recognition of the increasingly indispensable role that nontraditional “reporters” play in shaping public discourse. See Adam Cohen, The Media that Needs Citizens: The First Amendment and the Fifth Estate, 85 S. Cal. L. Rev. 1, 15–18 (2011) (describing various types of nontraditional newsgatherers).[/footnote] however, makes them an especially salient group for examining Nieves ’s potentially broad consequences. Professional and citizen journalists who fulfill the First Amendment’s “checking value”[footnote]See Blasi, Checking Value, supra note 10, at 528 (“[F]ree expression is valuable in part because of the function it performs in checking the abuse of official power . . . .”).[/footnote] arguably face a higher risk of government retaliation, since it may be in the state’s interest to silence criticism.[footnote]See Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012) (“When wrongdoing is underway, officials have great incentive to blindfold the watchful eyes of the Fourth Estate.”).[/footnote] Moreover, arrests of newsgatherers not only deprive individuals of their liberty but also infringe on the public’s interest in learning about the conduct of police and public officials.[footnote]See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (recognizing a First Amendment right of the public to receive information).[/footnote] Thus, while retaliatory arrests purportedly punish past acts, detainments of newsgatherers may actually serve as a pretext to thwart future speech—the dissemination of news.[footnote]Cf. Timothy B. Dyk, Newsgathering, Press Access, and the First Amendment, 44 Stan. L. Rev. 827, 949 (1992) (“[W]hen the government announces it is excluding the press for reasons such as administrative convenience, preservation of evidence, or protection of reporters’ safety, its real motive may be to prevent the gathering of information about government abuses or incompetence.”).[/footnote] Courts applying Nieves must have the flexibility to guard against state information-suppression efforts long considered anathema to First Amendment law.[footnote]See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978) (noting that the First Amendment “prohibit[s] government from limiting the stock of information from which members of the public may draw”).[/footnote]