Gene_Col_3.12.21

Memo to Police: Journalists Have a Duty to Observe, Report – Even Amid Chaos

This column expresses the views of Gene Policinski, senior fellow for the First Amendment, Freedom Forum.

A “watchdog” press can hardly report to the rest of us if it’s not able to watch — or gets arrested and carted off to jail while doing so.

Case in point: Des Moines Register reporter Andrea Sahouri, who was acquitted Wednesday of misdemeanor charges of failure to disperse and interference with official acts.

Sahouri and a friend, who accompanied Sahouri out of safety concerns, were pepper-sprayed, arrested, zip-tied and taken to jail by police on May 31, 2020, while Sahouri was reporting on a protest over the death of George Floyd at the hands of Minneapolis police. The friend also was acquitted Wednesday.

We don’t yet know if the six-person jury considered the defense’s argument that Sahouri was just doing her job. The jurors may simply have found the prosecution lacking in proof that she failed to follow a police order to leave a chaotic area during a demonstration.

But Sahouri made a powerful free press point during her testimony Tuesday: “It’s important for journalists to be on the scene and document what’s happening.”

Yes, journalists have no more — and no fewer — rights than any citizen in such circumstances. But they do have responsibilities on behalf of all of us that must be considered. We need what the nation’s founders believed was so necessary that they included it among our five core freedoms in the First Amendment: A free and independent source of information, which confirms, refutes or simply provides additional valuable information about what our government and its agents are doing.

At about the same time as Sahouri’s arrest last year, during protests in Portland, Ore., U.S. District Judge Michael H. Simon — faced with claims of police targeting reporters with rubber bullets and tear gas — issued an order to federal authorities limiting arrests of working journalists. “When wrongdoing is under way, officials have great incentive to blindfold the watchful eyes of the Fourth Estate,” he noted. But “the free press is the guardian of the public interest, and the judiciary is the guardian of the press.”

While the local prosecutor’s decision to take Sahouri’s charges to trial is rare, the arrest of journalists unfortunately is not. The U.S. Press Freedom Tracker reports that a vast majority of the 126 journalists arrested in 2020 were reporting on protests. (The Freedom Forum is among a coalition of groups supporting the work of the U.S. Press Freedom Tracker.)

Police often claim situations are too chaotic to separate reporters from others when dealing with violent crowds. But that doesn’t explain why police too often ignore clear evidence of reporters at work — such as last year’s incident when a CNN correspondent was arrested on camera during a live report.

Sahouri testified that she identified herself as “press” repeatedly and offered identification. Another Register reporter, Katie Akin, was nearby as Sahouri was being zip-tied and told police that they were journalists.

“I put up my hands,” Sahouri said at trial. “I said, ‘I’m press, I’m press, I’m press.’ (The officer) grabbed me, pepper-sprayed me and as he was doing so said, ‘That’s not what I asked.’”

Every arrest and prosecution ultimately turns on its own facts. Sahouri’s acquittal will not set any great legal precedent, but might be lodged for a time in public memory. Perhaps it offers good guidance for police facing future challenges when dealing with journalists reporting on civil disorder.

Given a record that goes back at least to the era of police attacks on reporters covering civil rights era protests and decades of attempts by authorities to prevent reporters from viewing police activity, during even peaceful demonstrations, I am skeptical.

In the end, perhaps we just get to cheer Sahouri’s justified acquittal as a “win” for a free press — as well as evidence that six Iowans sitting as jurors showed common sense, good judgment and the courage to act on both.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at [email protected], or follow him on Twitter at @genefac.

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