Statement by the Faculty of the Northeastern University School of Journalism Denouncing Police Attacks on Journalists:
The recent attacks on journalists by police in American cities, including on Northeastern University alumni, are unacceptable and do great damage to our democracy. They also jeopardize the ability of citizens to inform themselves about not just the current wave of protests but also our nation’s history of racism, bigotry and police brutality. Our society thrives on the free flow of information and the check on governmental authority provided by a free press. The vital work of the free press must be allowed to go on without the threat of harm and arrest. We stand with all journalists documenting this difficult chapter in American history, especially those from communities of color. We call upon all levels of government to end attacks by police on journalists and the institution of journalism, and to protect the First Amendment rights of protesters.
SIGNED BY:
Prof. Jonathan Kaufman, Director
Aleszu Bajak
Prof. Rahul Bhargava
Prof. Matt Carroll
Prof. Myojung Chung
Prof. Charles Fountain
John Guilfoil
Prof. Meg Heckman
Scott Helman
Prof. Carlene Hempel
Prof. Jeff Howe
Prof. Dan Kennedy
Prof. Laurel Leff
Prof. Dan Lothian
Peter Mancusi
Catherine McGloin
Meredith O’Brien
Prof. James Ross
Jody Santos
Prof. John Wihbey
Prof. Dan Zedek
The arrest and brief detention of a CNN crew on live television in Minneapolis early this morning was a stunning blow to the First Amendment. They were literally handcuffed and led away for doing their jobs in reporting on protests over the killing of George Floyd, a Black man, by a white police officer.
As the video reveals, the journalists were respectful, and correspondent Omar Jimenez clearly identified himself as a reporter. He told the state police officers several times that he and his crew would move wherever they were told.
That said, what happened to Jimenez and his colleagues was more common than you might realize — and more common than it should be. Last year, we bestowed a New England Muzzle Award upon Police Chief Armando Perez of Bridgeport, Connecticut for arresting and detaining Tara O’Neill, a reporter for Hearst Connecticut Media, during a Black Lives Matter protest.
“This is a public sidewalk and I’m the press,” O’Neill later recalled telling the officer who arrested her, according to media reports. “He said, ‘OK,’ and cuffed me.”
As with this morning’s Minneapolis arrests, the misconduct by police enabled them to operate without being watched by O’Neill and her pesky smartphone. Nevertheless, she was able to film her own arrest:
In a better-known case, Washington Post reporter Wesley Lowery and Huffington Post reporter Ryan Reilly were arrested at a McDonald’s in Ferguson, Missouri, during the demonstrations in 2014 over the killing of Michael Brown, a young African American man, by a white police officer.
Before that, Josh Stearns, now director of the Public Square Program at the Democracy Fund, put together a massive compilation of social-media posts documenting the arrest of journalists at Occupy protests around the country. (Here is a very small slice of what was going on from the Committee to Protect Journalists.) Storify, a tool for aggregating social media, recognized Stearns’ efforts with a “Storify of the Year” award.
Unfortunately, Storify later shut down, taking much of Stearns’ work with it.
Update. Stearns has posted a Twitter thread offering more background.
Update II. Noting that Jimenez is Black and Latino. A white CNN reporter standing nearby was not arrested.
CNN reporter Omar Jimenez, who is black and Latino, and his team were arrested by officers early this morning in Minneapolis. Not far away, CNN journalist Josh Campbell, who is white, says he was "treated much differently." https://t.co/1ZpqdyJON2pic.twitter.com/vPFLTx8UnK
For an aspiring autocrat like Hungarian Prime Minister Viktor Orbán, the COVID-19 pandemic has been a gift-wrapped opportunity to crack down on what’s left of his country’s free press.
Hungary’s parliament recently approved a state of emergency that allows Orbán to rule by decree. Among other things, journalists may be imprisoned for up to five years if they spread what the government considers to be misinformation about COVID-19. According to an anonymous journalist quoted in The Guardian, the measure began having its censorious effect even before it was voted on, as she learned after she called a hospital to ask about doctors who may have contracted the virus.
“A few minutes later,” she said, “the hospital’s chief communication officer called me back and asked if I think it’s a good idea to keep asking about this, a day before the government’s bill will be passed.”
Even as COVID-19 spreads disease, death and economic disruption across the world, it may also be contributing to repression in the name of protecting public health. The ominous developments are described in a new report by Reporters without Borders (known by its French acronym, RSF), which accompanies its annual World Press Freedom Index.
The index ranks countries on the basis of how much freedom journalists have to do their jobs and hold the powerful to account. According to RSF, the rankings have dropped several notches among countries that have suppressed the media as part of their response to COVID-19 — not just Hungary (now 89th), but also China (177th), Iran (173rd) and Iraq (162nd).
“The public health crisis provides authoritarian governments with an opportunity to implement the notorious ‘shock doctrine’ — to take advantage of the fact that politics are on hold, the public is stunned and protests are out of the question, in order to impose measures that would be impossible in normal times,” said RSF Secretary-general Christophe Deloire in a statement accompanying the report.
Cracking down on the media is not the only step governments are taking to stifle dissent. As The New York Times recently noted in a round-up of repressive responses to COVID-19, countries ranging from democracies such as Britain and Israel to more authoritarian states such as Chile and Bolivia have trampled on their citizens’ rights in the name of protecting public health. The measures include enhanced detention powers, increased surveillance and, in Bolivia’s case, postponing elections.
Draconian though those measures may be, threats to freedom of the press are uniquely dangerous because of its role as a monitor of power. Take that away and we have no way of knowing about the full extent of government repression.
Nor has the United States escaped the notice of RSF. Although its press freedom ranking of 45th is up slightly over last year, it still lags well behind Western European countries, in large measure because of President Donald Trump’s war against the media. Among other things, the report cites the Justice Department’s decision to file espionage charges against WikiLeaks co-founder Julian Assange as well as the “public denigration and harassment of journalists.”
Although RSF doesn’t mention it, the COVID-19 pandemic could accelerate the deterioration of press freedom in the U.S. In recent weeks President Trump has commandeered an hour or two of television time on many afternoons, using his bully pulpit, so to speak, to insult individual reporters when they try to ask tough questions. The media have been willing participants in their own delegitimization, with many outlets giving Trump free airtime and individual reporters rarely acting in solidarity.
There may be limits. As The Washington Post reported, a CNN reporter refused to move from her front-row seat on Friday after being ordered to do so by a White House official. Despite threats to involve the Secret Service, the White House apparently backed off. (Seat assignments are managed by the independent White House Correspondents Association.) And Trump — humiliated by the mockery he received after suggesting that people could ingest bleach to fight COVID-19 — vowed not to take part in any more press briefings. (By Monday, unsurprisingly, he was back at the podium.)
But though there is a buffoonish nature to Trump’s war against the press that sometimes makes it difficult to take him seriously, the fears raised by the pandemic and the economic catastrophe that has resulted could empower the president to take new measures against journalists, whom he regularly calls “enemies of the people.”
We may be in the midst of a well-meaning reduction in media access at the local level as well. Local officials, like all of us, are meeting via Zoom, which makes it more difficult for reporters to understand what’s going on and to ask questions. And when public officials try to be open, they run the risk of being Zoom-bombed. Just last week the New Haven Independent reported that the city’s board of alders got hit with child pornography. That same night, the Hamden legislative council had to shut down its meeting in the face of Zoom-bombers posting racist and homophobic slurs.
Zoom has security features, such as password protection and waiting rooms, that make it harder for trolls to break in. But that also makes it harder to live up to the letter and the spirit of open-meeting laws. The New England First Amendment Coalition recently urged that local officials delay crucial decisions until in-person meetings can be resumed, saying, “Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed.” But what if a month or two becomes six? Or 12? Or 18?
The pandemic is also accelerating the censorship of speech on Facebook and other internet platforms. According to an essay in The Atlantic by law professors Jack Goldsmith of Harvard and Andrew Keane Woods of the University of Arizona, this is actually a positive development, as, even before COVID-19, algorithmic tools were being brought to bear on “bullying, harassment, child sexual exploitation, revenge porn, disinformation campaigns, digitally manipulated videos, and other forms of harmful content.”
They add: “What is different about speech regulation related to COVID-19 is the context: The problem is huge and the stakes are very high. But when the crisis is gone, there is no unregulated ‘normal’ to return to. We live — and for several years, we have been living — in a world of serious and growing harms resulting from digital speech.” Or, as they put it elsewhere in their essay: “In the great debate of the past two decades about freedom versus control of the network, China was largely right and the United States was largely wrong.”
Good Lord. That’s a lot to wrap our minds around. As Noah Rothman puts it in Commentary: “Much of Goldsmith and Woods’ argument glosses over the important consideration that the Chinese model is dependent on coercion.”
But I’m going to leave aside the larger debate about free speech and repression so that I can hone in on one small but vitally important issue that Goldsmith and Woods gloss over. We already live in a world in which most news consumption takes place online, and an ominously large percentage of that consumption is mediated by Facebook. If Facebook’s role as an arbiter of news is going to grow even more powerful, and if we’re going to applaud the Zuckerborg for eliminating speech that it deems harmful, it seems to me that we’re going to have a free-press problem that is exponentially larger than Reporters without Borders’ most dystopian vision.
Then again, for a lot of us, freedom isn’t all that it’s cracked up to be. According to a 2018 study by Elizabeth J. Zechmeister of Vanderbilt University, about one in four U.S. adults “believes a coup would be justifiable in times of high crime or high corruption.” Imagine to what heights that support might soar if we get into, say, September or October, and conditions continue to deteriorate.
Former Vice President Joe Biden, the likely Democratic presidential nominee, has already warned that President Trump might try to delay the November election. Would he try? Would he attempt to declare a state of emergency, as Hungarian leader Orbán has done? Would U.S. military leaders obey their commander-in-chief — or their oath to defend the Constitution?
Our liberties are fragile, and that is especially the case at a terrible moment like the one we’re living through. Can freedom of the press survive the pandemic? It’s already been seriously damaged in Hungary and elsewhere. And it’s going to require vigilance — and luck — for it not to be seriously damaged in America as well.
It’s hard to imagine better timing for a book about the future of news.
In “Democracy without Journalism? Confronting the Misinformation Society” (Oxford University Press), Victor Pickard calls for vastly increased funding for public-interest reporting and public media, newsrooms that are run democratically by journalists and members of the community, and breaking up or strictly regulating monopolies such as Google and Facebook.
Back in those golden days of, say, early March, Pickard’s agenda would likely have been dismissed, at best, as intriguing but unrealistic and, at worst, as representing an unacceptable intrusion by government that would inevitably compromise journalism’s watchdog role.
But then came the instant recession caused by COVID-19 and, with it, alarmed calls for federal action to save journalism — especially local journalism, already in extremis. Among those demanding action: Washington Post columnist Margaret Sullivan; Craig Aaron, the co-CEO of the media-reform organization Free Press; and Steven Waldman and Charles Sennott, the co-founders of Report for America.
How bad is it? The news-business analyst Ken Doctor, writing at the Nieman Journalism Lab, reports that readership of newspaper websites is exploding — yet advertising is plummeting so quickly that losses are piling up. Every day, it seems, comes news of more papers eliminating print editions, cutting wages and laying off reporters. Which is actually the ideal set of circumstances for Pickard to make his argument that the contradictions of for-profit media have reached something of an endpoint. As an alternative, he proposes what he calls a “social democratic” model for journalism.
An associate professor of communication at the University of Pennsylvania’s Annenberg School, Pickard is a protégé of Robert McChesney and a former fellow at the aforementioned Free Press and the New America Foundation. The case he puts forth is that not only should government play a much bigger role in ensuring the health of journalism, but that the extreme market libertarianism that rules the media today is a relatively new phenomenon.
As Paul Starr (in “The Creation of the Media,” 2004) and others have before him, Pickard observes that the American press got an enormous boost starting in Colonial times by way of generous postal subsidies — a benefit that lasted until several decades ago, when market fundamentalists began demanding that the Postal Service cover its expenses.
Moreover, various regulatory efforts aimed at reducing commercialism in radio and television bore little fruit. By the late 1940s, Pickard says, they had pretty much run their course, and some of the forward-looking leaders of that era were pushed out of public service during the McCarthy-era crusade against progressives and reformers. “The alarm bells quieted, plans for bold reforms receded, and the status quo quietly but assuredly reasserted itself,” Pickard writes. “Nevertheless, it is important to recall that none of this was inevitable; it could have gone quite differently.”
One theme that Pickard turns to repeatedly is the idea that “positive rights,” as he calls them, should be regarded as important as “negative rights” when thinking about media policy. What are negative rights? As Pickard describes them, they protect a media owner from government regulation, something that has come to be seen in many circles as guaranteed by the First Amendment.
But negative rights matter a great deal, as they involve First Amendment protections such as the freedom not to be censored, protection against abusive libel cases and the right not to have limits put on political speech, including the endorsement of candidates. Unfortunately, endorsements are already endangered given the increasing prominence of nonprofit news organizations, which are prohibited from boosting candidates as a condition of keeping their tax-exempt status.
By contrast, positive rights, in Pickard’s formulation, involve the public’s right to a diverse, democratic media. Here’s how he describes it: “True inclusion means that communities are not only receiving high-quality news, but are also deeply engaged in the news-making process itself. Community members should be involved in the governing process and empowered to organize their own newsrooms and collaborate in participatory journalism. Community engagement in the news-making process is the best way to create a new kind of journalism, one that is accountable and trustworthy.”
This sounds worthy, but I’m concerned about what it would look like in practice. A strong news organization is often the result of one person’s vision, or that of a small group of people. Opening things up to democratic governance runs the risk of lowest-common-denominator journalism in which some members of the community demand that certain stories be covered, or not covered, because of individual or group sensitivities.
That’s a potential hazard with cooperatively owned news organizations, an idea that Pickard supports. I’m currently tracking The Mendocino Voice, a digital news outlet that is transitioning to the co-op model. I’m interested to see if they can pull it off, and I wish them well. But a healthy news ecosystem requires different models — for-profit, nonprofit, co-ops, volunteer projects and the like. On several occasions Pickard suggests that we’ve hit the limit with regard to for-profits and even traditional nonprofits. I’m not willing to go that far.
Where I would agree wholeheartedly with Pickard is that our public media system is woefully underfunded. Not only does Pickard document the exponentially greater sums spent on public television and radio in virtually every other Western democracy, but he also comes up with the perfect anecdote to illustrate his point: he tells us the federal government’s annual contribution to PBS — about $445 million a year — is considerably less than the $626 million the Pentagon spends on its public-relations office.
A well-funded PBS and NPR, insulated from political pressure, Pickard says, could go a long way toward solving the local-news crisis by ramping up coverage of communities that have been abandoned by legacy newspapers.
“Transforming the U.S. media system into a democratic force,” Pickard writes in conclusion, “requires a robust policy program of regulating or breaking up information monopolies, creating public alternatives to commercial news media, and empowering media workers, consumers, and communities to engage with and create their own media.”
The journalism crisis has been with us for a decade and a half, and it’s only become more acute over time. The coronavirus pandemic underscores two realities: we need local news, and there may be no reliable way to pay for it through traditional market forces.
Pickard outlines one set of possible solutions. Policymakers would do well to consider his ideas — and to act before the news we need to govern ourselves becomes one more victim of the virus that is currently upending our way of life.
Florida Gov. Ron DeSantis’ decision to bar a reporter for the Miami Herald and the Tampa Bay Times from a news conference that was otherwise open to the press was a flat-out violation of the First Amendment.
Although the question of whether public officials can ban specific journalists from media events has never been taken up by the Supreme Court, a 1974 federal district court ruling is generally regarded as good law. I wrote about it a few years ago when a similar situation arose in New Hampshire.
Several decades ago, a similar situation unfolded in Hawaii, where an aggressive reporter for the Honolulu Star-Bulletin named Richard Borreca butted heads with the mayor, Frank Fasi. Fasi decided to ban Borreca from regularly scheduled news conferences at his City Hall office. The Star-Bulletin went to court. And in the 1974 case of Borreca v. Fasi, U.S. District Court Judge Samuel King ruled that Fasi had to open his news conferences to all reporters. King wrote:
A free press is not necessarily an angelic press. Newspapers take sides, especially in political contests. Newspaper reporters are not always accurate and objective. They are subject to criticism, and the right of a governmental official to criticize is within First Amendment guarantees.
But when criticism transforms into an attempt to use the powers of governmental office to intimidate or to discipline the press or one of its members because of what appears in print, a compelling governmental interest that cannot be served by less restrictive means must be shown for such use to meet Constitutional standards. No compelling governmental interest has been shown or even claimed here.
Judge King made it clear that no member of the press was entitled to special privileges. If the mayor wanted to grant interviews to some reporters but not others, that was his prerogative. If he refused to answer a reporter’s questions, that was within his rights as well. But he could not discriminate against some members of the press when scheduling a formal, official event such as a news conference.
So now President Donald Trump’s re-election campaign is filing SLAPP suits against news organizations — that is, libel suits with no legal merit whose goal is to intimidate rather than to expose the truth.
The lawsuits have targeted The New York Times, The Washington Post and CNN, all of which have the resources to defend themselves. But the Trump campaign’s tactics raise a larger question: Will these suits embolden others to weaponize the courts against media outlets that lack the financial wherewithal to fight back against deep-pocketed opponents?
The New York Times today profiles Prager University, a right-wing meme factory founded by media figure Dennis Prager. In case you don’t know anything about Prager, I thought you’d be interested in some background.
In 2017, I gave a WGBH News New England Muzzle Award to YouTube and its owner, Google, for restricting access to a pro-Israel video made by Harvard Law School professor Alan Dershowitz for Prager University. The video could still be accessed, but by installing a speed bump, YouTube sent a clear signal that there was something transgressive about it — a ridiculous stance regardless of what you think of Dershowitz’s views.
In 2016, Boston Globe columnist Jeff Jacoby mixed it up with Prager after Jacoby accused his fellow conservatives of hypocrisy for throwing in with Donald Trump despite his well-documented moral depravity. That led to some back-and-forth between Prager and Jacoby in which Prager accused Jacoby of “gratuitous hatred.” Jacoby responded:
For me, the most disheartening aspect of the whole Trump phenomenon has been the sight of so many good, principled people deciding that their good principles need not keep them from marching behind Trump’s squalid banner.
As you’ll see from Nellie Bowles’ Times story, Prager is quite a piece of work.
In September 2018, President Donald Trump won an important First Amendment victory. By a 3-0 vote, the U.S. Court of Appeals for the 6th Circuit ruled that neither Trump nor his campaign could be held liable for injuries suffered by protesters at the hands of Trump supporters during a March 2016 rally even though the then-candidate had yelled to “get ’em out of here.”
The court’s reasoning was based on the straightforward application of free-speech principles: Trump had not advocated violence at the Kentucky rally (in fact, he had also said “don’t hurt ’em”), and therefore he couldn’t be successfully sued even though some people were roughed up.
The decision may have been a disappointment for those who thought Trump should be held accountable for his careless words. But under the First Amendment, political speech receives the highest level of protection except in the most extreme circumstances.
Now, though, those principles are in danger. Based on a similar set of facts, the 5th Circuit ruled recently that a police officer in Baton Rouge, Louisiana, can sue Black Lives Matter activist DeRay Mckesson for injuries he received at the hands of a rock-throwing protester — even though, as The Washington Post reported, “Mckesson did not throw the rock or tell anyone else to throw it.”
Mckesson had organized the 2016 demonstration following the police killing of a black man named Alton Sterling. The police officer, whose identity has not been revealed, claims that Mckesson acted negligently by not foreseeing that the demonstration could become violent.
“The goal of lawsuits like these is to prevent people from showing up at a protest out of the fear that they might be held responsible if anything happens,” Mckesson said in a statement released by the ACLU, which earlier this month asked the Supreme Court to take up the case. “If this precedent lasts, it could make organizers all across the country responsible for all types of things they have no control over, such as random people coming into a protest and causing problems. We can’t let that happen.”
The Supreme Court precedent that protected Trump and that, by all rights, should protect Mckesson is NAACP v. Claiborne Hardware Co., a case decided in 1982. The NAACP in 1966 called for a boycott of white-owned businesses in Claiborne County, Mississippi — a nonviolent form of protest that nevertheless led to some acts of violence. In 1969, several of the business owners sued the NAACP and were successful in the state courts. But the Supreme Court ruled unanimously that the NAACP could not be held liable for engaging in nonviolent free-speech activities regardless of actions taken by people not under the organization’s control.
Although the cases against Trump and Mckesson, like the case against NAACP, were for alleged civil offenses, it’s also worth noting the high bar the Supreme Court has set for incitement to violence in criminal cases. In the landmark 1969 case of Brandenburg v. Ohio, the court threw out the conviction of Ku Klux Klan leader Clarence Brandenburg because the threats he made at a rally against African Americans and Jews were non-specific and would not result in imminent violence.
In their petition to the Supreme Court, the ACLU’s lawyers argue that allowing the lawsuit against Mckesson to proceed would have a chilling effect on anyone who might wish to organize a nonviolent protest.
“Given the regularity with which violence and First Amendment activity co-occur and the vagaries of state law liability rules,” the lawyers wrote, “only the most intrepid citizens would exercise their rights and risk ruinous liability if they could be held liable for the wrongful acts of others.”
Ben Wizner, director of the ACLU’s Speech, Privacy and Technology Project, put it this way in the Washington Post story: “If this is allowed to stand, anybody can show up and throw a rock at a protest to bankrupt a movement they disagree with. People know when they step into the street that they might have to spend some hours in jail or pay a fine. But if they might have to pay a multi-million dollar civil judgment — that’s something they’re not prepared for, and can’t possibly be expected to prepare for.”
The case should prove to be a telling indicator of where the Supreme Court stands on free speech now that it has swung sharply to the right. Only four of the nine justices are needed take up the case.
Traditionally, even the court’s more conservative members have proved to be staunch advocates of the First Amendment. But if Trump’s justices, Neil Gorsuch and Brett Kavanaugh, were to break with that tradition, the case of DeRay Mckesson v. John Doe could prove to be a signal moment in our march to a less open, less free society.
My Northeastern colleagues Laurel Leff and Meg Heckman report on a new, serious threat to freedom of the press on college campuses: a federal reinterpretation of Title IX that puts faculty members at risk if they advise students who are reporting on sexual assault. They write at The Conversation:
At issue are increasingly common policies that require virtually every university employee to alert school officials if they hear even the slightest rumor of sexual misconduct — on or off campus — involving students or employees.
On most campuses, clergy members, mental health counselors and health care providers are exempt from such mandatory reporting requirements. University-affiliated journalists are not despite the fact that they also often need confidentiality to do their jobs effectively.
I heard about this for the first time last week. I immediately went through a mental checklist as I tried to remember whether any of my students was working on a story about sexual misconduct. They weren’t. But I’ve dealt with such stories in the past, and apparently I will not be dealing with them in the future.
This is an outrageous attack on the First Amendment. It even pertains to NPR affiliates associated with colleges and universities, which is to say most of them. What’s needed, as Leff and Heckman write, is a state law “exempting university-affiliated journalists and journalism educators from mandatory reporting requirements when they are advising student journalists.”
Joe Biden could be the next president. And he has issued a “demand” (via his campaign) that the networks stop booking Rudy Giuliani, which they have a First Amendment right to do.
Yes, Giuliani is lying about the Bidens. But Biden, who may soon have the power to appoint FCC commissioners, could have “urged” or “requested” that the networks stop giving Giuliani a platform. “Demand” suggests consequences. Does Biden want to join Trump in eroding constitutional norms?
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