April 1, 2013 The Honorable Patti Jo McKay Presiding Judge Los ...

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Letter of The Reporters Committee for Freedom of the Press andNational Press Photographers Association, April 1, 2013Page 6charged him with disorderly conduct. Mr. Garcia was acquitted after a bench trial.Unfortunately, because of those pending charges he was denied the renewal of hisWhite House Press credential and his ability to cover stories there. Mr. Garciacommenced a civil rights lawsuit against the county and the officers, and mostrecently, the United States Department of Justice filed a Statement of Interest on hisbehalf noting among other things ―that discretionary charges, such as disorderlyconduct, loitering, disturbing the peace, and resisting arrest, are all too easily used tocurtail expressive conduct or retaliate against individuals for exercising their FirstAmendment rights.‖ See Donald R. Winslow, Justice Department Statement SupportsMannie Garcia's Federal Civil Rights Lawsuit, NATIONAL PRESS PHOTOGRAPHERSASSOCIATION, March 4, 2013, https://www.nppa.org/node/42647.Freelance journalist Phil Datz was arrested by Suffolk County police in Long Island,New York, while attempting to record a police investigation. Mr. Datz was standingon a public street when a sergeant approached him while repeatedly yelling at him to―go away, go away now.‖ When Datz asked where he should go, he was told that heneeded to leave the area or face arrest. When he attempted to videotape police frommore than a block away, Datz was arrested. The charge was later dropped afterletters objecting to the arrest were sent to the police department and the story waspublicized. Datz then filed a lawsuit claiming his civil rights had been violated. SeeClara Hogan, Photojournalist arrested after filming police on public street,REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Aug. 2, 2011,http://www.rcfp.org/browse-media-law-resources/news/photojournalist-arrested-afterfilming-police-public-street;see also Steve Myers, Photojournalist sues cop, SuffolkCounty, N.Y., over right to videotape police, POYNTER,http://www.poynter.org/latest-news/mediawire/169671/photojournalist-sues-copsuffolk-county-n-y-over-right-to-film-police.Jim Epstein and Peter Tucker, both online journalists, were arrested and removedfrom a public meeting of the Washington D.C. Taxicab Commission. Both werecharged with disorderly conduct and ―unlawful entry/remaining‖ by U.S. Park Policeafter refusing to stop photographing and recording the meeting which was held atPark Police headquarters in order to better accommodate the large number of taxicabdrivers who were there to voice their opposition to a change in licensing rules. Theattorney general dismissed the charges almost immediately after the actions werewidely criticized in the press. See Mark Segraves, Journalists won’t face charges,WJLA-TV, June 24, 2011, http://www.wjla.com/articles/2011/06/journalists-won-tface-charges-62814.html.Milwaukee Journal Sentinel photojournalist Kristyna Wentz-Graff was arrested whiletaking pictures of an Occupy Wall Street protest. The officers making the arrestclaimed they were unaware Ms. Wentz-Graff was a journalist even though video ofthe incident showed that she was prominently displaying her press credential. SeeKaren Herzog, JS photographer arrested while covering Occupy Milwaukee protest,
Letter of The Reporters Committee for Freedom of the Press andNational Press Photographers Association, April 1, 2013Page 7MILWAUKEE JOURNAL SENTINEL, Nov. 2, 2011,http://www.jsonline.com/news/milwaukee/js-photographer-arrested-while-coveringoccupy-milwaukee-protest-133090133.html.A student photojournalist covering an ―Occupy‖ demonstration in Rochester, NewYork, was arrested for trespassing and violation of a municipal code that prohibitsbeing in the public park after hours after the journalist refused to leave the park,which, according to police, was closed at the time. The judge ultimately dismissedthe charges. The People of the State of New York v. Acuff et al., No. CR011-343597(Rochester City Ct. Monroe County Jan. 12, 2012).Emily Good was arrested by police in Rochester, New York for videotaping a trafficstop from the front lawn of her home. She was charged with obstructinggovernmental administration, but the charge was dropped by prosecutors within daysafter her story received national attention. See Jesse Solomon, Charge dismissedagainst woman who videotaped police encounter, CNN, June 27, 2011,http://www.cnn.com/2011/CRIME/06/27/new.york.police.video/index.html?_s=PM:CRIME.Unfortunately, some infringements on newsgathering activity are only resolved afterprotracted litigation. In at least two federal appellate circuits, courts affirmed theconstitutional protections afforded to newsgathering. In Glik v. Cuniffe, the U.S. Court ofAppeals for the First Circuit affirmed the rights of citizens to record police officers carryingout their duties in public spaces. 655 F.3d 78 (1st Cir. 2011). In 2007, Simon Glik wasarrested under the Massachusetts wiretapping law for openly recording with his cell phonewhat he believed to be an unlawful arrest on the Boston Common. In affirming Glik‘s FirstAmendment rights to record police in public, the Court noted in its analysis the ―selfevident‖First Amendment right to gather news is, as the Court has often noted, not one thatinures solely to the benefit of the news media; rather, the public‘s right of access toinformation is coextensive with that of the press and extends beyond the prohibition againstgovernmental abridgment of freedom of speech to ―encompasses a range of conduct relatedto the gathering and dissemination of information.‖ Id. at 82-83. ―There is an undoubtedright to gather news from any source by means within the law.‖ Id. (internal citations andquotations omitted).Similarly in ACLU v. Alvarez, the Seventh Circuit barred enforcement of the IllinoisEavesdropping Act against the American Civil Liberties Union of Illinois. 679 F.3d 583 (7thCir. 2012). In doing so, that court also recognized the importance of constitutionallyprotecting newsgathering activity:In short, the eavesdropping statute restricts a medium of expression—the useof a common instrument of communication—and thus an integral step in thespeech process. As applied here, it interferes with the gathering and
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