In recent years, particularly since former Republican President Donald Trump took office in 2017, U.S. police have failed to uphold basic constitutional rights for journalists covering rallies and other protests, a new report from the Knight First Amendment Institute said Tuesday, with the study documenting a number of physical attacks, unjust arrests, and suppression tactics used by police at protests both large and small.
Senior visiting fellow Joel Simon interviewed dozens of journalists and legal experts about the resurgence of police violence against journalists in recent years—a trend that recalls numerous "notorious incidents" that took place during the civil rights movement in the 1950s and 60s, including the harassment of reporters attempting to cover school integration in Little Rock, Arkansas and the seizure of camera film from journalists in Greenwood, Mississippi as police dogs attacked protesters.
In the 1980s and 90s, Simon wrote in the report, "violent police attacks on journalists receded along with police-protester clashes, perhaps in part because many police departments adopted a more conciliatory, negotiation-based approach to demonstrators."
"The steady growth of police militarization post-9/11," however, "helped fuel further conflict with the press," Simon wrote.
In recent decades the Department of Defense has supplied police departments across the U.S. with "military-grade equipment like armored vehicles, rifles, and grenades," noted the author, and a PEN America report on the protests that erupted in Ferguson, Missouri in 2014 after the police killing of Michael Brown illustrated how that change in law enforcement agencies' arsenals has intensified police officers' treatment of journalists as well as protesters:
The actions against journalists, as well as those against protesters, were "fueled by the aggressive militarized response by police to largely peaceful public protests... This apparently created a mentality among some police officers that they were patrolling a war zone, rather than a predominantly peaceful protest attended by citizens exercising their First Amendment rights, and members of the press who also possess those rights." The number of reported abuses "strongly suggests that some police officers were deliberately trying to prevent the media from documenting the protests and the police response."
In Ferguson, Simon wrote, researchers documented 52 alleged violations of reporters' constitutional right to cover protests, including physical attacks and aggression, obstruction of access, and 21 arrests.
"Protests have always been dangerous to cover, but we had never seen anything on this scale."
The protests in Ferguson marked a milestone in law enforcement's changing relationship with the press, the report shows, followed six years later by a number of rights violations during the nationwide racial justice uprising of 2020 in response to the police killing of George Floyd in Minneapolis.
"The inadequacy of press freedom protections was starkly exposed during the Trump administration, when some of the largest street protests in American history took place, including those against the Floyd murder," wrote Simon. "During that period, police frequently assaulted, arrested, or detained journalists at protests, particularly when enforcing dispersal orders, imposing curfews, or deploying crowd control measures. In 2020, at least 129 journalists were arrested covering social justice protests. More than 400 journalists suffered physical attacks, 80% of them at the hands of law enforcement."
Photojournalist Mike Shum described to Simon how "law enforcement turned on the media" in Minneapolis four days after Floyd's murder, after Minnesota Gov. Tim Walz (D) imposed an 8:00 pm curfew that ostensibly exempted the press:
That night police fired on a group of journalists with rubber bullets, hitting Shum in the foot. "It was confusing because we just kept screaming 'we’re press, we're press,’ but the bullets just kept flying," Shum recalled. In a separate incident that day, police in Minnesota fired on photojournalist Linda Tirado with what is believed to be a rubber bullet, permanently blinding her in one eye.
Other journalists were "pelted with pepper spray, tear gas, and other projectiles as they ran to take cover" after police "formed a skirmish line" to enforce the curfew. A photographer working with NBC, Ed Ou, was "hit in the head with what he believes was a flash-bang grenade" and then "blasted" with pepper spray by police who ignored his pleas for medical assistance.
Outside the Twin Cities, other journalists covering the uprising were hit with batons, beaten, and shot with rubber bullets, as well as arrested for trying to report on the protests.
The U.S. Press Freedom Tracker—whose data Simon used to compile the report—found that "hundreds of separate incidents" of police violence against journalists took place in 80 cities across 36 states in the year following Floyd's murder. Journalists in 309 cases said they were targeted by police officers between May 26, 2020—the day after the killing—and May 26, 2021, and 44 of those cases took place in Minneapolis.
"Protests have always been dangerous to cover, but we had never seen anything on this scale," Kirstin McCudden, managing editor of the U.S. Press Freedom Tracker, told Simon.
The report also details the use of "kettling"—in which police contain protesters, and in some cases, journalists, by surrounding them in one area—which was prevalent during the demonstrations that erupted in Washington, D.C. during Trump's inauguration in 2017.
One journalist, Aaron Cantú, was reporting on the "DisruptJ20" rally when he was trapped by the police officers' kettling tactic.
"He assumed he could approach the police line and explain he was reporting on the rally," Simon wrote. "But when he initially tried to engage with police, he was hit with pepper spray in his eyes and temporarily blinded."
Police also applied zip ties to Cantú's wrists "so tightly that his hands went numb" and refused him access to food or a bathroom "during the more than eight hours he was held in the kettle." Law enforcement also demanded access to his phone and electronic communications.
"The nature of journalism has changed, and the law does not appear to have kept up," Cantú told Simon. "In these dangerous situations, law enforcement is deciding who is or who is not a journalist."
Cantú was one of more than 200 protesters and journalists who were arrested at the protest, none of whom were ultimately convicted of a crime.
"These events could have played out differently. Police could have opted not to use kettling, an indiscriminate tactic that detains everyone in a geographical area, instead attempting to single out for arrest those who were violating the law," wrote Simon. "Police might have made a greater effort to ascertain if journalists were accidentally caught up in the kettle and to release them if their role could be confirmed. Prosecutors could have made a decision not to charge them, based on the fact that they were acting as journalists and engaged in newsgathering activities."
In the report, Simon called on police to refrain from interfering with or using force against anyone engaged in newsgathering activity and exempt reporters from curfew and dispersal orders.
"When the general public is no longer permitted to remain at the site of a protest, police can use indicators like a press credential, distinctive clothing marked 'press,' or professional recording equipment, to guide their determinations about who is exempt from the order," he wrote. "When in doubt, police should assume that someone who appears to be engaged in journalism is in fact a journalist."
Other recommendations include:
- State legislatures codifying such exemptions into law and requiring police to actively work to ensure journalists can operate at protests;
- News organizations offering police training on upholding press freedom and meeting directly with law enforcement agencies to establish a dialogue between press and police; and
- The U.S. Department of Justice opening investigations into credible allegations of the mistreatment of journalists at protests to establish whether there is a pattern of such conduct at police agencies.
Three years after the George Floyd protests, and ahead of the 2024 election, Simon wrote, "America remains polarized and broader policing issues are a source of deep controversy."
"This is the moment to tackle the historic challenge," he added. "The next wave of mass protests could be just around the corner. So could America's next press freedom crisis."
