Columbia Journalism School’s Response to the Arrests of Don Lemon and Georgia Fort
View resources from The Committee to Protect Journalists below.
Following the arrests of journalists Don Lemon and Georgia Fort, Columbia Journalism School would like to remind journalists and the public of their rights to record public events, to be free from government retaliation and to assert journalist privilege–even when government authorities attempt to intimidate or silence reporting. View resources from The Committee to Protect Journalists below.
Right to record
Most courts have determined that the First Amendment protects the right to make video recordings of police officers when they are in public, although this right can be subject to the time, place and manner restrictions described above and recording or covering the demonstrations or law enforcement activity should be conducted in a manner that is not obstructing or threatening the safety of others or physically interfering with law enforcement. This right has been recognized by over half of the nation’s Courts of Appeals, including those in the First, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits. The Supreme Court and all other appellate courts have not affirmatively ruled for or against the right. Some states have recently passed legislation prohibiting recording or approaching within a short distance of a police officer regardless of whether such conduct actually interferes with the officer’s law enforcement activities. For example, Indiana passed a law in 2023 prohibiting individuals from approaching within 25 feet of an officer after being ordered not to approach. A journalist challenged the constitutionality of the law because of its potential to limit his right to record, but a federal district court held that the law is constitutional—as of spring 2024, the ruling is under appeal in the Seventh Circuit Court of Appeals. In Arizona, a 2022 law prohibiting recording within 8 feet of a police officer was held to be unconstitutional. Journalists should be cognizant of local legislation that may impact the manner in which they may record the police.
The right to record also exists at the U.S. border, and in 2020, the U.S. government entered into a binding settlement that prohibits customs and border patrol agents from infringing on the right to record law enforcement activity from publicly accessible outdoor areas as long as the recording does not interfere with the lawful law enforcement activity.
Many states have eavesdropping or wiretapping statutes that prohibit recording private conversations without the consent of one or both parties to the conversation, and some states have statutes that also apply to public conversations. In certain circumstances, courts have held that the application of these statutes infringes on the recorder’s First Amendment rights. Nonetheless, reporters should review applicable law and guidance in the states in which they are working.
Retaliation
Government officials cannot retaliate against reporters for their reporting or selectively grant access, for example, by denying a press credential. Reporters who have been unfairly denied press credentials should review the applicable law in the jurisdiction to learn how to challenge or appeal the decision.
Journalist privilege
Most courts have recognized that journalists have a qualified privilege under the First Amendment against compelled disclosure of materials gathered in the course of their work. Journalists can be required to hand over their work materials, but only in limited circumstances – for instance, if the government demonstrates a compelling need and shows that the information is not obtainable from another source. Many states also have so-called “shield laws” which generally provide journalists with protection against disclosing their materials. These protections are not absolute: for example, in a 2020 case, a court upheld a subpoena requiring a number of news organizations to turn over unpublished photos and videos of a protest because “the photos and video were critical for an investigation into the alleged arson of [police] vehicles and theft of police guns.”
More recently, police in Kansas executed a search warrant and raided the office of the newspaper, the Marion County Record and the personal home of its publisher. The warrant was subsequently found to be improper, but only after many records and devices were seized. If a journalist’s audio or video recordings or notes are requested by a government official, including a police officer, the journalist may refuse. But when confronted with a warrant for search and/or seizure, the journalist should ask to review the warrant and confirm it is signed by a judge and accurately identifies the address of the place to be searched, describes the items to be seized, and identifies the legal basis for the warrant. He or she should also seek legal counsel as soon as practicable.
In 2021, the U.S. Justice Department updated internal policies to prohibit the seizure of reporters’ communications data for purposes of identifying confidential sources. However, this policy is not applicable to state and local law enforcement officers. In any event, such officers are bound by the Constitutional protections regarding seizure discussed below.
For more information on your rights as a journalist, visit: https://cpj.org/2024/07/guide-to-legal-rights-in-the-u-s-2/