By Chris Daly
Just to be clear: It is never OK to arrest a journalist (except in rare cases where the journalist is actively engaged in some activity that is a crime, like committing arson on a day off). When a journalist is working, the police have a positive duty not to interfere. The arrests of the journalists covering the Occupy movement are violations of their Constitutional rights. More importantly, those arrests violate the absolute right of the people to be informed about what John Adams called “the character and conduct of their rulers.”
To repeat, the First Amendment says:
“Congress shall make no law …
abridging the freedom . . . of the press.”End of story. The founders left no wiggle room there. James Madison did not write, “Make no law unless it would be convenient to impose a news blackout.” He did not write, “Make no law unless you think you can get away with telling the people you are arresting journalists for their own safety.”
Shame on those cops. Shame on their chiefs. Shame on those mayors.
Discipline the cops. Fire the chiefs. Recall the mayors.
Those things won’t happen, of course, so it’s up to the journalists on scene. Report, report, report. Take names and badge numbers. Call your lawyers. File suit.
Shoot video. Take pictures. Get audio.
[Yes, of course, I realize that there is another side to this argument: It is ludicrous to say that all journalists have an unlimited right to descend en masse on every crime scene, disaster site, drug bust, surveillance stake-out, courtroom, grand jury room, and so on. But that’s not what’s at stake in the Occupy arrests. These are not secret, investigative police actions. These are important public-policy matters, playing out in public (Yes, Zuccotti Park is private, but that seems like a technicality at this point, since the occupation is infused with such a public interest in its outcome). It is also disingenuous for police, when they start making arrests, to declare the area a “crime scene” just because they are making arrests and order all journalists to leave. If the police are allowed to do that, then journalists will never be able to watch the police at work and report about it. That would be a great day for the police but a bad day for everybody else. Even Justice Byron White, no friend of the news media, saw the threat. As he wrote in the majority opinion in the 1972 Branzburg ruling, “Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated.”]