Free Speech Isn’t Just for “Journalists”

Three weeks after the Republican National Convention came to St. Paul, Mayor Chris Coleman announced that the city will drop charges of unlawful assembly against journalists stemming from protests outside of the Xcel Energy Center. The <a title=”Associated Press quoted” href=”http://ap.google.com/article/ALeqM5gL5IwaQvz2iAurKjVIlfDLL289bgD93A1RO81″ target=”_blank”>Associated Press quoted</a> Coleman’s prepared statement: “This decision reflects the values we have in St. Paul to protect and promote our First Amendment rights to freedom of the press.”
In the weeks leading to this decision, journalists across the country have shared outrage, disappointment, and anger at the sheer number of their own arrested throughout the four-day event. And yet, in decrying the treatment of their credentialed peers, journalists fail to recognize that every citizen has a First Amendment right to record events taking place on a public street, including police actions.
This right has been identified in federal court, specifically in <a title=”Robinson v. Fetterman and Smith v. City of Cumming” href=”http://spamnotes.com/2008/09/17/the-first-amendment-protects-the-right-to-videotape-police.aspx” target=”_blank”>
Robinson v. Fetterman and Smith v. City of Cumming
</a>. The United States Supreme Court has also articulated, in Branzburg v. Hayes, that the First Amendment right to freedom of the press applies not only to the mainstream and well-funded press, but also to the “lonely pamphleteer.” With the rise of handheld technology and the internet, today’s “lonely pamphleteer,” the blogger or citizen journalist, has gone from an abstract idea to a reality relatively quickly. For example, citizen journalism non-profit <a href=”http://theuptake.org/” target=”_blank”>the UpTake</a> had a <a href=”/2008-09-05/media/utnecast-the-uptakes-jason-barnett-on-the-changing-face-of-the-media.aspx?blogid=34″ target=”_self”>notable presence</a> at both the Democratic and Republican conventions, streaming tons of live footage of protester and police clashes with the use of cell phones.
So, who IS a journalist? What criteria will determine who qualifies for dropped charges and who does not? And why aren’t we hearing more outrage from journalists concerning First Amendment rights violations in general, rather than solely addressing the rights of traditional journalists?
A forum sponsored by the Minnesota chapter of the <a title=”Society of Professional Journalists” href=”http://www.mnspj.org/” target=”_blank”>Society of Professional Journalists</a> held at the University of Minnesota Monday evening sought to identify what went right and what went wrong with media and law enforcement during the RNC. Moderated by the Poynter Institute’s <a title=”Al Tompkins” href=”http://www.poynter.org/column.asp?id=2″ target=”_blank”>Al Tompkins</a>, the panel included St. Paul Dep. Mayor Ann Mulholland, KARE-11 photojournalist Jonathan Malat, Assistant Police Chief Matt Bostrom and Pioneer Press reporter Mara Gottfried.
Notably absent from the panel was a representative of alternative media, although as the conversation ensued, concerned citizens and journalists from alternative media outlets took their turn at the microphone. Charlie Underwood, who was a street medic during the protests, disputed the focus on journalists. “Are you trying to reserve a special category of citizen that does not get pepper sprayed, that does not get arrested, that does not have the same punitive things happen to them under these situations of police brutality that the rest of us do?” he asked.
Tompkins responded, “The question that we’re here for tonight, Charlie, is this: How do people like Jonathan and Mara do their jobs as journalists and not get arrested?”
”How do all of us do our jobs and not get arrested?” interjected someone from the crowd. The man, who identified himself as Ed Felien, editor of the Minneapolis neighborhood newspaper <a title=”Southside Pride” href=”http://www.southsidepride.com/” target=”_blank”>
Southside Pride
</a>, went to the microphone.
”All of us have a right to be on the streets. Journalism has gone through a tremendous revolution in the last 10 years. It’s no longer the two or three corporations that control the television networks or the newspapers. There’s no longer this concentration of power that has a monopoly on all the news. There’s a lot of stuff happening on the Internet, there’s a lot of stuff happening on YouTube and so on, that has much more validity for people than whatever Rupert Murdoch thinks is news. I think Charlie’s point is absolutely to the point. I’m not a member of that media, I’m a member of a different, alternative media, and I have absolute rights to witness what’s happening and a responsibility to communicate that.”
When Tompkins confronted panelists with the question of how to define a journalist, they displayed clear reluctance to give a definition. Gottfried seemed the least willing to answer the question, simply responding with, “I don’t know.” Deputy Mayor Mulholland said that she believed the mayor was referring to anyone who was there to tell a story and called themselves a journalist, but went on to say, “I have no idea how to define a journalist, and I don’t know that all of us in the room really know how to define journalist. I therefore ask the question, how are law enforcement officials supposed to answer that question while in the midst of a public safety scene?”
Well, the question was not answered that evening. Nor, perhaps, should it be. As First Amendment lawyer Mark Anfinson, who attended the forum, pointed out, defining who is and who is not a journalist leads us down a slippery slope of government regulation of the press, which is a very clear violation of how the courts have interpreted freedom of press.
Another local media lawyer, Steven P. Aggergaard, who writes the blog <a title=”Media Law Minnesota” href=”http://medialawminnesota.wordpress.com/” target=”_blank”>Media Law Minnesota</a>, provides perhaps the <a title=”most clearheaded analysis” href=”http://medialawminnesota.wordpress.com/2008/09/20/off-the-hook/” target=”_blank”>most clearheaded analysis</a> of what should be considered in this potentially precedent-setting endeavor:

The First Amendment was not adopted to protect journalists. It was enacted to protect free expression for everyone. True, the First Amendment specifically ensures a free press, but I simply do not believe that “the press” had the same meaning in 1791 as it does today. Early Americans wanted to make sure that the people who operated printing presses and therefore enabled large-scale free expression would not be subject to the burdensome licensing schemes prevalent in Europe. The First Amendment’s drafters did not intend to extend special privileges to massive for-profit media conglomerates or even to bloggers for that matter. Rather, they sought to protect the rights of anyone who had something to say, protesters included.


As for those protesters, I completely agree that some at the RNC crossed the line. As I said previously, those who participated in the near-riots committed criminal acts. But the large number of onlookers who merely sought to express themselves, to watch people express themselves, or to document people expressing themselves committed no crimes. Cases closed.

UPDATE (9/26/08): Watch <a title=”video of the SPJ panel” href=”http://the-uptake.groups.theuptake.org/en/videogalleryView/id/838/” target=”_blank”>video of the SPJ panel</a> at the UpTake.

Image by <a title=”uberculture” href=”http://flickr.com/photos/uberculture/” target=”_blank”>uberculture</a>, licensed under <a title=”Creative Commons” href=”http://creativecommons.org/licenses/by/2.0/deed.en” target=”_blank”>Creative Commons</a>.