First step in police reform: Protect the First Amendment

Opinion editor's note: Star Tribune Opinion publishes a mix of national and local commentaries online and in print each day. (To contribute, click here.) This article is a response to Star Tribune Opinion's June 4 call for submissions on the question: "Where does Minnesota go from here?" Read the full collection of responses here.

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The scathing report from the U.S. Department of Justice released this month chronicles racial discrimination and the use of excessive force by the Minneapolis Police Department. Such practices violate 14th Amendment guarantees to equal protection under the law. But the report also documents systematic violations of First Amendment rights, including police attacks on protesters, interference with the right to record and retaliation against journalists covering police abuse.

While meaningful police reform is likely to be a long and involved process, there are steps that law enforcement can take immediately to improve accountability and public oversight. Police should ensure that journalists and members of the public acting as newsgatherers are able to work without interference.

The patterns of behavior described in the Justice Department investigation are typical of police departments across the country, according to a report by the Knight First Amendment Institute at Columbia University. That report, "Covering Democracy: Protests, Police, and the Press," found that journalists face violence, arrests and other restrictions while seeking to cover protests and demonstrations.

Throughout 2020, as protests erupted across the country in response to the murder of George Floyd, 109 journalists were arrested or detained and over 300 were attacked by police, according to data compiled by the U.S. Press Freedom Tracker. Many serious incidents were recorded in Minneapolis. On May 30, 2020, for example, Minnesota state T\troopers assaulted a group of about 20 journalists who were displaying press passes and carrying cameras. One of them, Pulitzer Prize-winning Los Angeles Times photographer Carolyn Cole, suffered serious injuries to her eyes and back after being hit with pepper spray and pushed over a wall. Cole believes she was deliberately targeted as a journalist and along with a colleague filed a lawsuit to defend her rights.

As the 2020 protests spread throughout the country, so did the First Amendment violations. According to the Press Freedom Tracker arrests and assault of journalists were recorded from New York City to Des Moines, and from Portland, Ore. to Washington, D.C.

Police often claim that such attacks occur because it's impossible to differentiate between journalists and average people holding up a cellphone. But this is a red herring, because in most instances journalists and protesters have the same rights, and neither should be targeted for documenting the activities of police. In fact in many instances the attacks on journalists took place not because police failed to distinguish them from protesters but because they specifically targeted the press.

In the limited instances in which police must distinguish between journalists and the general public — for example while enforcing a curfew or a dispersal order — we propose a process that recognizes the way in which journalism has been transformed by new information technologies.

We are long past the day when a small cadre of professional journalists — who often had pre-existing relationships with police — covered protests in their own communities. Today, sadly, local journalism has been decimated and journalists themselves bring a wide variety of experiences and approaches to their role. Some straddle the line between journalism and activism, and rely on social media to reach their audience.

Police should use a common-sense approach to determine who is a journalist in this complex environment, focusing on observable behavior such as displaying a press credential, wearing distinctive clothing, using professional photographic equipment or standing off to one side. We call this a "presumption of journalism."

While police have raised concerns that protesters might falsely claim to be journalists, our research indicates that this seldom occurs.

Our report includes a series of recommendations targeting not just the police, but also state legislatures, journalists and the news industry as a whole. Our goal is to create an environment in which all First Amendment rights are better protected and the police are more accountable to the public they serve.

The Justice Department makes the case for such an approach in its own report, pointing out the Minnesota Police Department lied in its initial news release about the murder of George Floyd claiming that he had died after "suffering medical distress."

"Because a 17-year-old girl filmed that day, the nation learned what really happened," the report notes. That girl is named Darnella Frazier, and she was later awarded a special citation from the Pulitzer Prizes. Her actions demonstrate why police reform depends on the ability of newsgatherers, professional journalists and engaged citizens, to document the activities of police and inform the public.

Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism at CUNY and a senior research fellow at the Knight First Amendment Institute. Katy Glenn Bass is research director at the Knight Institute.