Arresting Journalists: A First Amendment Analysis

Freedom of the press is one of the five rights protected by the First Amendment, in addition to religion, speech, assembly and petition.

But what exactly counts as “the press” and what that freedom entails isn’t neatly spelled out in the 45 words of the First Amendment. That means arresting journalists is a somewhat misunderstood topic, as people could think there is a blanket immunity for all journalists in the United States because they have the First Amendment right to say and do whatever they want without being arrested.

That is not the case.

In this article, we discuss what the First Amendment does and does not do to stop government officials from arresting journalists and highlight times when those arrests were wrong and when they were lawful under the First Amendment. We also highlight how the U.S. compares to the rest of the world regarding press freedom.

If the First Amendment protects freedom of the press, how can journalists be arrested?

It is true that a free press and the act of publishing information is one of the five freedoms guaranteed by the First Amendment. This means the government can’t punish journalists because the government doesn’t like what the journalists report or stop them from reporting it in the first place. But this doesn’t mean journalists – or anyone – can say or write whatever they want or be wherever they want whenever they want without consequence.

RELATED: What is prior restraint?

Trespassing

Just as laws ban breaking into a government building or trespassing on private property, journalists don’t have a special right to do these things. For example, a journalist cannot walk into the Oval Office and demand an interview with the president at any moment. Doing so would likely result in arrest or other legal consequences. The same goes for a situation with a journalist and a governor or mayor in their office or private residence.

Similarly, trespassing or disobeying a lawful police order to clear an area could result in a journalist being arrested. A journalist cannot break into a house or hack into a person’s phone or computer and then claim they were doing it in pursuit of a story and thus were protected by the First Amendment.

Defamation/libel

The First Amendment does not protect journalists from legal liability for defamation. If a journalist makes a false statement that harms someone's reputation, the journalist could be forced to pay damages to that person as a result if they also acted with negligence (if the person suing them is a private figure) or actual malice (if the person suing them is a public official or public figure).

Lawful orders

Journalists could also face arrest and jail time if they ignore a lawful order to disperse or go into areas that government officials deem off limits. Often this happens while covering events of public interest such as public officials’ news conferences, protests, riots, or if police believe the journalist is obstructing their work, such as while arresting another person.

When cases of arresting journalists arise – and make the news – it’s often over disputes around whether the journalist was legally allowed to record or be in a particular place, or whether they obstructed a police officer from carrying out their duty. Such cases of journalists being arrested usually prompt local or national headlines and news coverage, but often the legal cases against the journalists are dropped on First Amendment grounds.

RELATED: Can you record in public?

National security

The need to protect national security can conflict with the desire to protect press freedom in certain situations. Journalists who publish information that threatens national security could face charges under certain federal U.S. statutes. WikiLeaks founder Julian Assange was charged with violations of U.S. federal law after disclosing hundreds of thousands of pages of material, much of which was classified information. Though never arrested in the United States, he pled guilty and returned to his native Australia.

Refusing to testify

Journalists who receive highly sensitive information may also find themselves forced to testify about the source of that information and could face jail time for contempt of court if they refuse. Though 49 states and Washington, D.C., have legal protections for journalists that protect them from being forced to reveal confidential sources, there is no such protection (often called a “shield law”) at the federal level.

RELATED: What is reporter’s privilege?

Press advocacy groups and some members of Congress have been pushing for decades to pass a federal shield law to give journalists the right to refuse giving up their sources when compelled. Though it’s come close in past sessions of Congress, no such bill had passed the U.S. House and Senate to become law.

What are the recent trends in the U.S. around arresting journalists?

The U.S. Press Freedom Tracker compiles incidents involving arrests, harassment, threats, assaults and more against journalists. Kirstin McCudden with the Freedom of the Press Foundation leads the tracker’s work.

“The utility of the tracker grows every year,” McCudden told Freedom Forum in 2023, noting its ability to reflect the state of press freedom in the U.S.

For arrests and/or criminal charges against journalists, data since 2017 shows:

2017: 38

2018: 14

2019: 10

2020: 146*

2021: 64

2022: 16

2023: 14

2024: 42**

*2020 reflects the large number of arrests during nationwide racial justice protests and, in some locations, riots following the murder of George Floyd in Minneapolis and the police shooting death of Breonna Taylor in Louisville, Kentucky.

**As of Aug. 26, 2024, including three arrests at protests during the Democratic National Convention in Chicago.

Examples of journalists being arrested in the U.S.

As the U.S. Press Freedom Tracker shows, there are multiple examples every year of journalists being arrested. Many of these cases come during protests or similar events and result in no charges or in the cases being dismissed. In some cases, the arrests have made national news or resulted in jail or prison time.

Here are several examples of journalists being arrested in recent years that highlight different reasons for the arrest and outcomes for the journalists involved:

Evan Lambert, NewsNation

Year: 2023

Reason for arrest: Lambert was in East Palestine, Ohio, covering a train derailment and explosive chemical fire that caused evacuations and ongoing health concerns for residents in the region. Police stopped him while he was on air reporting from a news conference with government officials, including Gov. Mike DeWine. Police instructed him to leave, and he refused. They tackled and arrested him on charges of criminal trespass and resisting arrest.

What happened: After the incident, the governor said he thought Lambert had “every right” to be at the event and report on air while he was talking. Charges against Lambert were dismissed one week later. Lambert sued the city and county. The parties agreed to pay the journalist more than $110,000 for damages and related legal fees and costs.

'Do not touch me' — Bodycam footage shows the moment NewsNation reporter Evan Lambert was arrested during a news conference in East Palestine, Ohio pic.twitter.com/nvpyLnkx3k

— NowThis Impact (@nowthisimpact) February 13, 2023

April Ehrlich, Jefferson Public Radio

Year: 2020

Reason for arrest: Ehrlich was covering the clearing of a camp of homeless people in a Medford, Oregon, park when she was caught up in the sweep. As Ehrlich was reporting, police arrested her for trespassing in the public park, resisting arrest and obstructing a police officer.

What happened: Prosecutors pursued two of the three charges and moved toward a trial in March 2022. A judge dismissed the trespass charge after Ehrlich’s attorney filed a motion claiming it was unconstitutional on First and Fourth Amendment grounds. The city attorney’s office then moved to dismiss the resisting arrest charge.

Priscilla Villarreal Treviño, independent journalist

Year: 2017

Reason for arrest: Villarreal runs a popular Facebook page for news in and around Laredo, Texas, reporting mostly on issues involving local police and the U.S. Border Patrol. She reported the name of a Border Patrol agent who had died by suicide before a government news release made the information public. Texas officials charged her under a state law preventing misuse of official information.

What happened: A judge dismissed the charges in March 2018. Villarreal filed a lawsuit over her arrest and time being detained, saying police treated her unprofessionally and retaliated against her and that the law itself was vague and “selectively enforced.” A federal court ruled in her favor, but an appeals court in Texas reversed that in 2024. Villarreal has said she plans to appeal to the U.S. Supreme Court.

Wesley Lowery, Washington Post and Ryan Reilly, Huffington Post

Year: 2014

Reason for arrest: Lowery and Reilly were among hundreds of local and national journalists covering protests and confrontations in Ferguson, Missouri, following the police shooting of teenager Michael Brown. Both were in a McDonald’s restaurant working and filing their stories when police arrested them for trespassing and interfering after officers ordered them to leave.

What happened: Prosecutors formally charged Lowery and Reilly just days before the one-year statute of limitations ran out. As the case went forward, press freedom advocates and lawyers for both journalists pushed for the charges to be dropped – and they were. In May 2016, nearly two years after their arrests, prosecutors agreed to drop the charges in exchange for both agreeing not to sue the county.

Judith Miller, The New York Times

Year: 2005

Reason for arrest: A federal grand jury subpoenaed Miller to testify in a case investigating a leak from the administration of President George W. Bush. The leak identified a covert CIA agent, and Miller knew the identity of the leaker through her reporting. She refused to give up the source, citing a reporter’s privilege that shielded her from revealing sources.

What happened: Federal courts, including the Supreme Court, disagreed with Miller’s claim that she was protected from giving up her source when asked by a federal grand jury. She spent 85 days in jail on a contempt charge and eventually testified before the grand jury after being released from confidentiality by the administration source, Lewis “Scooter” Libby.

Arresting journalists and press freedom: U.S. compared to the world

The U.S. is known for its broad protection of the press that stems from the First Amendment. But as these and many other examples show, arresting journalists still occurs, and sometimes jail or prison time results, depending on the specific case and whether First Amendment or other legal protections apply.

Despite the First Amendment’s protection for journalists, the U.S. doesn’t lead the world in press freedom rankings. In 2024, the global press freedom and advocacy group Reporters Without Borders, known by its French moniker RSF, ranks the U.S. 55 out of 180 countries for press freedom (Norway is first). This ranking is based not only on arrests of journalists but also more indicators such as overall safety and the political environment journalists face.

As RSF notes: “After a sharp increase in 2020, freedom of the press violations have fallen significantly in the United States, but major structural barriers to press freedom persist in this country, once considered a model for freedom of expression.” 

Scott A. Leadingham is a Freedom Forum staff writer. Email