Federal Court Says Anyone Can Be A Journalist While Upholding The Right To Record Police Officers
Police officers are quick to argue that anything people do in public doesn't have an expectation of privacy. They have also been quick to argue (until precedent made it mostly futile) that anything they do in public shouldn't be documented, recorded, and disseminated.
These cops are, of course, wrong. But that doesn't stop them from harassing, detaining, or arresting people who record their public activities.
On the other hand, there's journalism. It's naturally assumed (again, based on a shitload of court precedent) that news gathering, not just news reporting, is protected by the First Amendment. Plenty of states have instituted journalism shield" laws that prevent law enforcement from targeting journalists or their sources. But the rub is always this: who is a journalist?
Some proponents of this otherwise good legislation want to limit protections to members of locally or nationally known new agencies. But the internet and the ubiquity of cellphones have made it possible for anyone to be a journalist. Not only are these recordings newsworthy, but the act of recording should be subject to shield legislation, rather than any individual cop's idea of what can or cannot be recorded.
Fortunately, the precedent siding with anyone who owns a smartphone continues to grow. And this federal court decision [PDF] (coming to us via J.D. Tuccille at Reason) adds to that mix by indicating anyone capable of gathering information on newsworthy events is someone worthy of First Amendment protections.
The plaintiff, Justin Pulliam, is no stranger to local law enforcement - in this case, the Fort Bend County (Texas) Sheriff's Office [FBCSO]. Pulliam has recorded officers for years, publishing his interactions on his YouTube channel. Following a negative interaction with FBCSO deputies while recording the recovery of a submerged vehicle at a local park (Pulliam was ordered to move behind the people the FBCSO considered to be real" journalists), Pulliam was arrested for filming deputies' arrest of mentally ill man, despite following orders to move away from the supposed crime scene. According to the criminal charges, Pulliam somehow interfered" with officers despite being more than 170 feet away from the incident the entire time.
In addition to being arrested, Pulliam's cameras and memory cards were seized and searched by the FBCSO. Pulliam sued. And, thanks to this ruling, his litigation survives to fight another day.
The sued officers basically claimed Pulliam was not a real journalist" and also had no constitutional right to stand anywhere he wanted." The court disagrees, at least in terms of standing to sue (not the stand wherever you want" argument).
While asserting their above contentions, the Defendants offer no further case law or facts to support their contention that Pulliam' s lack of complaint at the time or the occurrence of an alleged altercation defeats Pulliam's complaint. In his response, Pulliam contends the basis of his claim is not that he has the right to stand anywhere he wants," but that he was discriminated against and intentionally excluded from the Press Conference when Hartfield and Garcia removed him at Fagan' s alleged direction.
Pulliam was ordered to stand several meters away and alleges this order interfered with his ability to participate and gather information like the other media members at the Press Conference. Although Pulliam concedes he was told he could keep filming at the location he was moved to, Pulliam alleges he could not hear the Press Conference or otherwise meaningfully participate and, thus; was excluded from the Press Conference. Further, Hartfield and Garcia allegedly made statements acknowledging they knew Pulliam, were familiar with his work," and yet deemed him not to be a member of the media. Accordingly, Pulliam' s complaint adequately alleges Garcia and Hartfield were deliberately interfering with Pulliam's clearly established constitutional rights under the First and Fourteenth Amendments when they removed him from the Press Conference and treated him differently than other members of the press.
The government also fails when it comes to addressing the arrest of Pulliam at the scene of the mental health incident.
As to [Sheriff Eric] Fagan, Pulliam alleges in his complaint that prior to the Arrest, [Deputy Ricky] Rodriguez informed his colleagues by police radio that Pulliam had arrived and referred to him as a local joumalist." Pulliam further alleges an unidentified officer at the jail after the Arrest stated, [we] should teach [Pulliam] for [messing] with us." The complaint further alleges Fagan personally addressed Pulliam while at the jail and said something to the effect of fine we will do this the regular way" allegedly in response to the Pulliam' s refusal to answer his questions.
These statements contradict the assertion there is no evidence that Fagan or the other Defendants did not consider him to be a journalist or that they did not even know of him. Pulliam's complaint sufficiently pleads facts regarding the circumstances of the Arrest as retaliation for his prior interactions with FBCSO. Further, these statements, when taken as true as required at this stage, also establish that Fagan was personally directing the actions taken against Pulliam, thus infringing on clearly established constitutional rights under the First and Fourteenth Amendments. Therefore, the Court finds Pulliam has adequately pled facts to support his claim regarding the Arrest.
That takes care of the qualified immunity invocations. There won't be any. The individual defendants will have to actually engage with the judicial system and hope for the best.
The Sheriff's Office can't dodge the lawsuit either. The court says Pulliam has alleged enough to suggest the FBCSO has a policy to deal with people like him. At least one deputy referred to him (over the radio) as a local journalist." But when it came to pushing him away from police activity, the sheriff and his deputies also insisted Pulliam was not a member of the press." They can't have it both ways. And the court decision says something else entirely: Pulliam is definitely a journalist and his actions were not only permitted, but protected, by the First Amendment.
This is a civil rights case. Plaintiff Justin Pulliam (Pulliam") is an independent journalist who films activities of public interest, including police interactions with civilians. Pulliam has consistently filmed and reported on official activities for nearly three years and was known by Fort Bend County officials.
In other words, Pulliam doesn't have to demonstrate to the FBCSO's satisfaction that he's a member of the press." His actions over the years have demonstrably shown he's a journalist. And if he's a journalist, anyone with a camera (and that's pretty much everyone) and the willingness to approach law enforcement activities is just as much a journalist as anyone employed by major or minor news agencies. To be sure, journalism is a profession. But it's also an action. And anyone who gathers news, however informally, should be given the same deference and constitutional protections granted to the New York Times and Washington Posts of the world.