Chief Michel Moore
Office of the Chief of Police
100 West First Street
Los Angeles, CA 90012
Re: First Amendment Rights of Journalists
Over the last two years, we have seen an unprecedented number of protests and public demonstrations in Los Angeles. These protests are matters of huge public interest, and our community requires news about these events. Because many of these protests have been focused on political accountability and reform, details of how your department is responding to protesters are as noteworthy as the messages of the protesters. It is imperative that your department allow journalists maximum access to these events, including when officers make arrests or decide to disperse a crowd.
Journalists are conduits of information to the broader community, recording and reporting on events as “surrogates for the public” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 ). Denying press access to events of public importance not only violates journalists’ rights but harms society as a whole by depriving the public of information about their government’s actions (Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 ).
The First Amendment protects filming and photographing police officers in the performance of their duties
Journalists have a well-established First Amendment right to engage in news-gathering activities (Branzburg v. Hayes, 408 U.S. 665, 681 ). Protected press activities include video recording and photographing police officers in the performance of their public duties (Smith v. City of Cumming, 212 F.3d 1332, 1333 [11th Cir. 2000], recognizing the right of all people to photograph or videotape police conduct; Schnell v. City of Chicago, 407 F.2d 1084, 1085 [7th Cir. 1969], finding police interference with news reporters and photographers’ constitutional right to gather and report news and to photograph news events violated First Amendment). Your department should ensure that all officers know that the press has a right to document police conduct during protests and the officers are trained not to interfere with journalists’ news-gathering activities.
Police officers can only restrict press access to protests if it is necessary to maintain public safety
Streets, sidewalks and parks are considered traditional public fora and, accordingly, restrictions on First Amendment activity in these spaces must be “narrowly tailored to serve a significant governmental interest” (McCullen v. Coakley, 134 S. Ct. 2518, 2529 ). Members of the press are entitled to at least equal access to events and demonstrations as members of the public (Pell v. Procunier, 417 U.S. 817, 833-34 ). Any space that is open to pedestrians or protesters must be similarly open to journalists.
Further, some courts have recognized that journalists have a right to observe police activities when they close streets or disperse protesters, so long as they are not interfering with the police’s work (Index Newspapers v. City of Portland, 480 F. Supp.3d 1120, 1147 [D. Or. 2020], finding no government interest served by dispersing journalists and legal observers attempting to record police closing streets because of a riot; Connell v. Town of Hudson, 733 F. Supp.465, 471-2 [D.N.H. 1990], recognizing the right to take photographs of the scene, as long as it does not directly interfere with the police investigation or disturb evidence). Accordingly, journalists cannot be confined to a press or staging area unless the government has a compelling reason to restrict their access. Any limitation your department imposes on the press at protests must be consistent with those applied to the general public and be implemented to prevent interference in police work.
Targeting members of certain press outlets for exclusion violates the First Amendment
The government cannot restrict press access because of the journalist’s perceived political ideology or their audience’s beliefs (United Teachers of Dade v. Stierheim, 213 F. Supp. 2d 1368, 1373 [D. Fla. 2002], finding the school board couldn’t exclude teachers union newsletter drafter from meetings because the readers were teachers). Police cannot deprive certain journalists of access to information made available to others, even if the decision is not explicitly motivated by animus towards the journalist’s views (Nicholas v. N.Y.C., 2017 WL 766905 [S.D.N.Y. 2017], finding photojournalists could not be excluded arbitrarily or based on viewpoint where others were permitted; American Broadcasting Co. v. Cuomo, 570 F.2d 1080, 1083 [2d Cir. 1977], “once there is … participation by some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable”). Your department has to treat all members of the press equally, regardless of the views their publications express and the medium through which they communicate with their audience. Even arbitrarily different treatment of journalists cannot be justified.
We appreciate your commitment to observing the First Amendment and respecting the rights of journalists. We are happy to serve as a resource should any issues or concerns arise at protests in the future months.
Industrial Workers of the World
Freelance Journalists Union
New York City Industrial Union