By Ed Esposito
In late April, the New Jersey Attorney General issued guidance on interactions between law enforcement and members of the press at public protests. Although law enforcement officers recognize that members of the public have a First Amendment right to peaceably assemble, there are situations when unlawful conduct may occur at a protest. To ensure that the rights afforded to our citizens under our Constitution are balanced with sound public safety methods, the new guidance sets forth best practices for law enforcement and press at protests.
Best practices for law enforcement and press at protests
Pre-event coordination: Law enforcement and press should maintain open lines of communication prior to a protest to ensure that all parties are aware of any plans for law enforcement presence and have the opportunity to discuss the logistics of press access.
Liaison for the press: Law enforcement agencies should designate a lead agency liaison that the press may contact with all inquiries and issues before and during the event. Members of the press should, when practical, identify themselves to the liaison in advance.
Visible press identification: Members of the press should wear clearly visible identification, such as large, brightly colored, reflective, double-sided press identification cards to be worn around the neck — including, but not limited to, those issued by the New Jersey Press Association and New Jersey Society of Professional Journalists — or clothing, such as neon-colored or reflective vests, that identifies individuals as press. Such identifiers help facilitate press access to events and allow officers to distinguish press from other members of the public.
Refresher training for police: Prior to a protest event, law enforcement agencies should ensure that officers who will be on duty to maintain public safety are reminded of the rights of the press, and of the role of law enforcement in facilitating press coverage of the protest.
Rights and responsibilities of press at protests
General right to cover protests: Just as the First Amendment protects the right of members of the public to peaceably assemble, it also protects the right of journalists to cover and report on those protests without interference from law enforcement. Under no circumstances may police arrest a member of the press — or take any other action — in retaliation for press coverage, or to prevent lawful reporting on a public protest.
Members of the press remain subject to general laws: Prohibitions on unlawful conduct that apply to the public generally also apply to the press, with some exceptions. Journalists are not permitted to engage in otherwise illegal conduct just because they are reporting on a protest, but oftentimes members of the press are specifically exempted from certain legal restrictions. For instance, curfew orders put in place by municipalities during times of unrest often contain an exemption for journalists. Law enforcement should be aware of any such exemptions. Moreover, given the importance of protecting First Amendment activity, police officers should exercise discretion in enforcing minor violations of the law in this context.
Right to record: Federal and state courts have held that the First Amendment protects the right of the press and of the public to film or otherwise record police performing their official duties in public. This right may be subject to generally applicable time, place and manner restrictions that, for example, protect officer safety and prevent interference with law enforcement activity. Any such restrictions cannot be motivated by the desire to avoid having police activity filmed.
Role of law enforcement at protests
Enabling the safe exercise of First Amendment rights: In general, the goal of law enforcement presence at public protests is to facilitate First Amendment–protected conduct while maintaining public safety. Therefore, if members of the public, including journalists, violate lawful time, place or manner restrictions or other laws, such as trespassing laws or orders to disperse, then police may enforce those laws if necessary to maintain public safety.
Law enforcement should use restraint at protests. It is critical that law enforcement officers use restraint in the enforcement of generally applicable laws whenever First Amendment–protected conduct is implicated. In some instances, the conduct of protesters or journalists may technically violate a law or restriction without being disruptive, dangerous or violent; for example, by obstructing a sidewalk. In such cases, officers should generally refrain from enforcing every possible violation, unless action is necessary to maintain public or officer safety or protect property from destruction, and there are no alternative means to accomplish those goals. Unnecessary or excessive enforcement action may undermine public safety, rather than preserve it.
Law enforcement must be content-neutral. During a protest, law enforcement must not take any action that is motivated by disagreement with the content of the protest or a protected characteristic of a protester or journalist such as race or religion, or otherwise act with the intention of targeting any person for their exercise of First Amendment or other constitutional rights. For instance, an officer cannot question or take action against a journalist because the officer believes that the journalist sympathizes with or against the cause that is the subject of the protest.
The seizure of cameras, cell phones or notes from journalists is generally prohibited. Law enforcement should never seize a press member’s camera, cell phone, notes or other journalistic work product or documentary material, except in the exceedingly rare case where it is necessary for public safety or the result of a search incident to a lawful arrest. In addition, officers must never delete such material and should search these items only after obtaining approval from the county prosecutor or the attorney general.
A final word
To be sure that these constitutionally protected events are appropriately handled by law enforcement, it is always a good practice to ensure that refresher training is conducted prior to a planned protest. Periodic roll-call training on this topic when there are no planned protests is also recommended. Such training will assist officers and supervisors in being informed on the best practices in the event of a planned occurrence or spontaneous event that may be protected under the First Amendment.
While this article and the recent guidance primarily concern the interaction between the police and the press at protests, I strongly recommend and encourage training on this topic that encompasses the rights of all persons present at a protest, including members of the press. A training session on this topic can be easily enhanced by including a comprehensive question-and-answer session with a knowledgeable trainer.