It is not a great time to be a journalist in America.
The assault on the First Amendment by militarized police in Ferguson, Mo., continues unabated, and the press is not spared. Since the start of protests against the August 9 killing of Michael Brown, journalists in Ferguson have been arrested, fired on, threatened, and assaulted.
After more than a week of heavy-handed police violence – through the use of tactics and weapons better suited for a warzone than an American suburb – freedoms of speech and the press were dealt a major legal blow on Tuesday. A federal court denied a motion from the ACLU of Missouri for an emergency order to prevent police from enforcing a ban on standing in place for more than five seconds. The "keep-moving mandate" (also known as the five-second rule) remains in place, criminalizing constitutionally protected activity and placing a dangerous barrier on the ability of the media to bring us stories from this city under siege. As Tony Rothert, the legal director of the ACLU of Missouri, told MSNBC, "In many ways, the First Amendment has been suspended in Ferguson."
This defeat came on the heels of an earlier victory, in which the ACLU of Missouri reached an agreement with the police, stating that members of the public and the press can record on-duty police officers. That was good news – except it should never have been up for debate, because you always have the right to photograph what's plainly visible in public. Including the police.
Addressing events in Ferguson, President Obama had some encouraging words last week that defended this country's proud tradition of media freedom. "Here, in the United States of America," he said, "police should not be bullying or arresting journalists who are just trying to do their jobs and report to the American people on what they see on the ground."
But those strong words, a reflection of the foundational role of the media in our democracy, belie what has become a sustained attack by the government on press freedoms.
The Obama administration is the most aggressive in U.S. history when it comes to prosecuting journalists' sources for disclosing unauthorized leaks. It has gone after the journalists, too. In just one example, it continues to pursue a Bush-era subpoena of James Risen, a New York Times journalist, to testify against a source accused of leaking information about CIA efforts to derail Iran's nuclear program. In an effort to sever journalists from their sources, Director of National Intelligence James Clapper recently went so far as to sign a directive forbidding intelligence officials from talking to the press – even about unclassified matters – without securing permission in advance.
Widespread government surveillance, in addition to imperiling the privacy rights of millions of Americans, has also severely undermined the freedom of the press. A recent ACLU-Human Rights Watch report shows that many journalists have found information and sources increasingly hard to come by. To make matters more burdensome, they've had to resort to elaborate techniques to keep their communications secret. The result? We get less information about what our government is doing in our name.
The right to record the actions of the government without it interfering is a basic prerequisite to a functioning democracy. Restrictions on media freedom – whether via surveillance, prosecutions, or tear gas – rob us of the information we need to engage in informed debates, assess our government's policies and practices, and hold it to account. Journalists aren't criminals, and they shouldn't have to act like spies.
But there's still a fight to be fought. A media shield law taken up last year by the Senate gives journalists important protection from having to disclose their sources (though it does have some problems, including a deeply concerning national security exception).
In Ferguson and elsewhere, the ACLU remains vigilant, making sure protesters and journalists know their rights and challenging restrictions on speech. So be sure to brush up – and if your rights have been violated, we want to know about it.