As protesters paint signs for another round of “No Kings” demonstrations this Saturday, journalists are getting ready in their own way: Charging camera batteries, notifying emergency contacts, and rinsing old tear gas off their shatter-resistant goggles.
At similar events since June, well over a hundred journalists have been injured, detained, or arrested by police. Now two cities — Los Angeles, California, and Chicago, Illinois — are expecting their largest protests since federal judges issued multiple rulings exempting the press from general dispersal orders and restricting law enforcement use of “less lethal” munitions.
Those are big wins on paper, but only if you know how to use them.
The law exists in two separate but unequal places: the court and the street. And you’ll never win a philosophical argument on a skirmish line.
Sure, you’re probably right. You’re armed with the First Amendment. But the average police officer is armed with a baton, handcuffs, body armor, tear gas, and at least a couple of guns. They may also be tired, overwhelmed, hungry, and see you standing between them and a bathroom break.
As they’ve been known to say, “You can beat the rap, but you can’t beat the ride.”
It’s no longer “Listen to me,” it’s ideally “Here’s a signed order from your boss.”
Covering a protest, an immigration raid, or an immigration hearing is no place to give up your rights. Instead, you can learn to invoke them more effectively.
The press is one of two professions (alongside religious practitioners) distinguished by its constitutionally guaranteed freedoms. Policing is the opposite, marked by rigid command structure and a sworn duty to enforce very specific codes and regulations.
But cops are supposed to be trained and held accountable by their department. They shouldn’t need reminding of the law they’re supposed to uphold. And it’s not the job of journalists to train them.
As professional communicators, journalists may find it more productive to translate conversations into the language of law enforcement.
For example, in California, it won’t get you very far to tell an officer you’re exempt from dispersal orders thanks to “Senate Bill 98.” You might be talking to a kid fresh out of the police academy or a detective pulled off desk duty to earn overtime. They have no idea what passed the statehouse four years ago. At best, they’re trained to speak in terms of “penal code.” Mentioning “Penal Code 409.7,” the statute established by that bill, might be your better ticket out of handcuffs. (This state law only applies to local law enforcement, not to federal operations like Immigration and Customs Enforcement or other Department of Homeland Security agencies.)
For journalists in the Chicago and Los Angeles areas, recent court rulings, including one for the LA Press Club in which I’m a plaintiff, have made things much clearer. Ideally you don’t need to print out 80 pages of preliminary injunctions. An officer will likely ignore that anyway, figuring it’s up to department lawyers to interpret. Instead, try to print the version of orders their boss(’s boss’s boss) was required to issue. The following list of PDFs are being updated as those materials are released by each agency, so use your judgment and print what might be applicable to your situation.
This puts things in law enforcement terms — from the top of their command structure. It’s no longer “Listen to me,” it’s ideally “Here’s a signed order from your boss.”
You want a printed copy, since your phone could run out of battery, be lost, or shatter. And it’s never a good idea to hand your unlocked phone to police. Also, if you need to pull out these orders (or a press pass), state clearly what you’re reaching for before placing your hand in a pocket or bag. Officers don’t love those sorts of unannounced movements.
A piece of paper isn’t much of a shield from a raging officer swinging a baton and screaming, “Leave the area.” But if you can engage with them, you want to ensure the precious few words that they hear will resonate. And it bears repeating: Everyone has a boss.
Protests involve a lot of turnover on the front line, so you may never see the same officer twice. If possible, communicate early and often. Ask to meet a supervisor or public information officer during a calm moment, and get their name so you can ask for them if you have trouble later on.
Unfortunately, even a signed order from the chief isn’t always a “get out of jail free” card. After a temporary restraining order was issued against the LAPD this summer, officers still put several journalists in zip ties during a protest. Two lawyers who had won the TRO showed up with a copy of official paperwork instructing officers to leave press alone. After they handed it to the incident commander, police still drove two photojournalists away in the back of a squad car.
The LAPD later suggested those photographers were ”pretending to be media.” The pair’s credits include The Atlantic, The New Yorker, Business Insider, The Washington Post, New York Magazine, Rolling Stone, Mother Jones, and even a cover for Time magazine.
A federal judge later wrote of the LAPD, “The Court expresses no approval for this conduct. To the contrary, the evidence presented is disturbing and, at the very least, shows that Defendants violated the spirit if not the letter of the Court’s initial restraining order.”
Of course, the photojournalists beat the rap. But they didn’t beat the ride.
Attending a protest outside of LA or Chicago? You still have First Amendment rights, even if you don’t have a court order. The U.S. Press Freedom Tracker has been investigating and documenting serious violations in cities from New York to Portland, Oregon. If you experience or witness law enforcement violating press rights anywhere in the country, please send us tips and any available evidence to tips@pressfreedomtracker.us.
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