Protests, the Press, and First Amendment Rights Before and After the â•œFloyd Caselawâ•š

591

PROTESTS, THE PRESS, AND FIRST AMENDMENT RIGHTS BEFORE AND

AFTER THE “FLOYD CASELAW”

Peter Jacobs

INTRODUCTION

CNN reporter Omar Jimenez was standing in the middle of an empty

street, holding a microphone, wearing a press pass, and speaking directly into

a professional-grade video camera when he was arrested by Minneapolis

police officers. In footage of his arrest, presumably seen live by millions of

households tuned in to CNN to watch coverage of the unfolding protests

following George Floyd’s death, Jimenez clearly identifies himself and his

camera crew to police officers. Nevertheless, he is led away in handcuffs.

Two days later, Andrea Sahouri was pepper sprayed by police and

arrested while covering a Black Lives Matter protest in Des Moines, Iowa.

Sahouri, a reporter for the Des Moines Register, wasn’t wearing a press

badge but announced herself to police at the scene—“I’m press, I’m press,”

she said, right before she was pepper sprayed. While recovering, she told the

officer “I’m just doing my job. I’m a journalist,” which was confirmed by

her boyfriend at the time and a colleague, who displayed her own press

badge.

Despite her identification, Sahouri was arrested and charged with

failing to disperse and interfering with official acts. This was the rare press

case where the charges actually stuck, despite wide-spread condemnation of

Peter Jacobs is a 2022 graduate of the University of Pennsylvania Law School, J.D., and served as

Comments Editor for Volume 24 of the University of Pennsylvania Journal of Constitutional Law.

Previously, he received his B.A. in 2013 from Cornell University. He would like to extend

enormous thanks to Professor Seth Kreimer for his guidance on the scope and content of the work

that became this Comment. He also offers thanks to JCL's stellar editors, including Jessica Rizzo,

Katie McKeen, and Dana Dyer; and, as always, to Rebecca, and his family.

CNN, Police Arrest CNN Correspondent Omar Jimenez and Crew on Live Television, YOUTUBE (May 29,

2020), https://www.youtube.com/watch?v=ftLzQefpBvM [https://perma.cc/W5FP-EY89].

William Morris, ‘This Is My Job!’: Register Reporter Andrea Sahouri Testifies in Her Own Defense in Her

Second Day on Trial, DES MOINES REGISTER (Mar. 9, 2021, 6:43 AM),

https://www.desmoinesregister.com/story/news/crime-and-courts/2021/03/09/this-my-job-

iowa-reporter-said-she-arrested-while-covering-floyd-protest/4638859001/ [https://perma.cc/T

P3J-TEMJ].

592 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

the First Amendment implications of putting a journalist on trial for their

coverage of a protest.

“I’m a reporter, bro,” Gustavo Martínez Contreras told police officers as

he was arrested while covering a protest in Asbury Park, New Jersey, the

following night.

Martínez Contreras, a reporter for the Asbury Park Press,

had every reason to expect to not be a police target. Although the town had

put a curfew in place, journalists were expressly exempted from the order—

which is why Martínez Contreras “wore his brightly colored press badges on

a lanyard around his neck all night, so there would be no question that he

was one such reporter,” according to a lawsuit filed after the charges against

him for failure to disperse were dropped.

These are just a few of the more than 100 journalists around the country

who were arrested while on the job in 2020.

As protests following the

murder of George Floyd engulfed the country, Americans watched in shock

as members of the press were beaten, fired upon, and arrested while covering

mass demonstrations.

These arrests, in particular, stood out as “a blatant

violation of constitutional protections and long-standing ground rules that

guide interactions between media and law enforcement officials.”

Even as

charges against these reporters have largely been dropped, several members

of the media have fired back, filing lawsuits asserting the constitutional rights

guaranteed by federal civil rights statutes.

The cases that emerged from

these protests—what one federal judge termed the “Floyd Caselaw”

—all

In March 2021, an Iowa jury acquitted Sahouri in under two hours.

Complaint at 3, Martínez v. City of Asbury Park, No. 3:20-CV-08710-AET-DEA, 2021 U.S. Dist.

LEXIS 43944 (D.N.J. July 13, 2020).

Id. at 2.

Jessica Jerreat, At Least 117 Journalists Detained, Arrested Covering US Protests This Year, VOICE OF AM.

(Dec. 14, 2020, 8:08 PM), https://www.voanews.com/press-freedom/least-117-journalists-

detained-arrested-covering-us-protests-year [https://perma.cc/FJL3-FETM].

See, e.g., Paul Farhi & Elahe Izadi, ‘The Norms Have Broken Down’: Shock as Journalists Are Arrested, Injured

by Police While Trying to Cover the Story, WASH. POST (May 31, 2020),

https://www.washingtonpost.com/lifestyle/media/journalists-at-several-protests-were-injured-

arrested-by-police-while-trying-to-cover-the-story/2020/05/31/bfbc322a-a342-11ea-b619-

3f9133bbb482_story.html [https://perma.cc/6MEL-FNHR] (noting that an MSNBC anchor

reporting in Minneapolis was hit by rubber bullets fired by police).

Id.

E.g., Woodstock v. City of Portland, No. 3:20-CV-01035-BR., 2020 WL 3524230 (D. Or. June 8,

2020) (bringing § 1983 actions against Portland Police Department for disturbing and assaulting

media members while reporting).

Alsaada v. City of Columbus, No. 2:20-CV-3431, 2021 WL 1725554, at *26 (S.D. Ohio Apr. 30,

2021) (“Since the last year’s protests in the wake of George Floyd’s killing, there have been no fewer

than seventy-three cases exploring how these protests shine a light on existing First Amendment or

Fourth Amendment principles. (‘Floyd Caselaw’).”).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 593

present “a similar tale” about the state of First Amendment rights in

America.

Taken as a whole, these decisions may signal a broader

acceptance of judicially-recognized press rights.

The professional press were not the only groups potentially targeted by

police while attending protests, however. Legal observers,

citizen

journalists,

and protest medics

have all asserted that law enforcement

retaliated against them for First Amendment protected conduct. Individuals

deprived of their constitutional rights can bring a claim against state agents

under 42 U.S.C. §1983, including an allegation that an official arrested them

in retaliation for First Amendment protected conduct.

Generally, plaintiffs seeking to bring a § 1983 First Amendment

retaliatory arrest lawsuit need to prove three elements—1) that the plaintiff

was actually engaged in constitutionally protected conduct, 2) the plaintiff

suffered some sort of injury connected to this conduct, and 3) a state actor

caused this injury because of a retaliatory motive.

As detailed below, the

Supreme Court’s holding in Nieves v. Bartlett established a fairly high bar for

plaintiffs bringing these lawsuits, as they now need to prove there was no

probable cause for their arrest.

Id.

Jake Offenhartz, “Round Up The Green Hats”: NYPD Accused Of Deliberately Targeting Legal Observers in

Brutal Bronx Mass Arrest, GOTHAMIST (June 8, 2020, 9:13 PM),

https://gothamist.com/news/round-green-hats-nypd-accused-deliberately-targeting-legal-

observers-brutal-bronx-mass-arrest [https://perma.cc/RZV9-2S2K].

Complaint at 26, Hall v. Warren, No. 6:21 Civ. 06296 (W.D.N.Y. Apr. 05, 2021) (alleging that

police “targeted and shot at . . . people who were recording officers,” such as the plaintiff).

Melissa Gira Grant & Katie McDonough, Protest Medics on Being Targeted by the Police, in Their Own

Words, NEW REPUBLIC (June 3, 2020), https://newrepublic.com/article/157985/protest-medics-

targeted-police-words [https://perma.cc/FL5W-NX36].

Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (“‘[T]he First Amendment prohibits government

officials from subjecting an individual to retaliatory actions’ for engaging in protected speech. . . .

[T]he injured person may generally seek relief by bringing a First Amendment claim.”’).

See, e.g., Hartman v. Thompson, 931 F.3d 471, 484 (6th Cir. 2019) (“A claim of First Amendment

retaliation requires proof that: ‘(1) the plaintiff engaged in protected conduct; (2) an adverse action

was taken against the plaintiff that would deter a person of ordinary firmness from continuing to

engage in that conduct; and (3) there is a causal connection between’ the first two elements, i.e. ‘the

adverse action was motivated at least in part by the plaintiff’s protected conduct.’’’) (quoting

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); DeMartini v. Town of Gulf Stream, 942

F.3d 1277, 1289 (11th Cir. 2019) (“To state a § 1983 First Amendment retaliation claim, a plaintiff

generally must show: (1) she engaged in constitutionally protected speech, such as her right to

petition the government for redress; (2) the defendant’s retaliatory conduct adversely affected that

protected speech and right to petition; and (3) a causal connection exists between the defendant’s

retaliatory conduct and the adverse effect on the plaintiff’s speech and right to petition.”).

See Nieves, 139 S. Ct. at 1723 (establishing that plaintiffs bringing First Amendment retaliatory arrest

claims must prove that there was no probable cause for their arrest).

594 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

These groups face two major impediments to vindicating these attacks on

their constitutional rights. For one, they have to navigate an uncertain legal

landscape surrounding the right to report on and observe police activity

under the First Amendment. The Supreme Court—as well as several circuit

courts—has not acknowledged this right.

While it seems that every circuit

court that has encountered the question has determined the right exists, the

contours and scope of it are still to be widely accepted.

Is this right based

on speech and expressive conduct, or does it derive from the right to access

information? How it is defined will have implications for who can

successfully state a claim for First Amendment retaliation.

Second, these plaintiffs must overcome a Supreme Court-mandated

barrier to First Amendment retaliatory arrest claims. In Nieves v. Bartlett, the

Court established that, as a general rule, plaintiffs seeking to bring a First

Amendment retaliatory arrest claim need to prove that there was no

probable cause for the officer’s action.

This, as will be explained below, is

a hard bar to reach.

The good news for these plaintiffs is the second prong—concerning injury

to the individual engaged in protected conduct—is comparatively

straightforward. Plaintiffs typically either need to show they suffered a direct

harm or that their protected speech was chilled. In First Amendment

retaliation cases, the arrest itself is typically considered evidence that a

plaintiff’s speech was chilled.

“The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury,”

Christina Murray, Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First

Amendment Right to Record the Police, 71 MERCER L. REV. 1125, 1126 (2020) (“Of the nation’s thirteen

federal circuit appellate courts, only six have unequivocally recognized a citizen’s First Amendment

right to record the police as they conduct their public duties.”).

See, e.g., Crocker v. Beatty, 995 F.3d 1232, 1241 (11th Cir. 2021) (“The dearth of detail about the

contours of the right announced in Smith undermines any claim that it provides officers ‘fair

warning’ under other circumstances.”) (citing Smith v. City of Cumming, 212 F.3d 1332, 1333

(11th Cir. 2000).

Nieves, 139 S. Ct. at 1723 (agreeing with defendants’ argument that the “no-probable-cause

requirement should apply to First Amendment retaliatory arrest claims.”).

See, e.g., Hoyland v. McMenomy, 869 F.3d 644, 657 (8th Cir. 2017) (“[T]here can be little doubt

that ‘being arrested for exercising the right to free speech would chill a person of ordinary firmness

from exercising that right in the future.’”); Sexton v. City of Colorado Springs, No. 20-CV-00108-

PAB-KMT, 2021 WL 1210375, at *12 (D. Colo. Mar. 31, 2021) (“[A] retaliatory arrest

unsupported by probable cause is an injury that would chill a person of ordinary firmness.”);

Hartley v. Wilfert, 918 F. Supp. 2d 45, 52 (D.D.C. 2013) (compiling “substantial caselaw in which

the threat of an arrest—even in the absence of an actual arrest—is sufficient to chill speech, in

violation of the First Amendment.”) (emphasis in original).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 595

according to the Supreme Court.

As long as the plaintiff will be able to

show that their conduct was protected by the First Amendment, a retaliatory

arrest claim should qualify as harm.

Even before the emergence of the “Floyd Caselaw,” professional

journalists could assert a strong case against these arrests—finding that their

First Amendment rights are protected and there may not be probable cause

to arrest members of the press at protests. Other groups, however, including

legal observers, citizen journalists, and protest medics, faced hurdles that

could halt their claims. Part I of this paper examines Nieves v. Bartlett and

explains why this paper focuses on the professional press. Part II outlines the

constitutional right at issue for non-participants at a protest, using recent

“right to record” cases as a stand-in for a general right to engage with matters

of public importance. Part III charts two paths for individuals to push back

on the Nieves “no probable cause” requirement. Part IV evaluates the

strengths and weaknesses of several non-participant groups’ First

Amendment retaliation claims following the framework established for

professional journalists. Part V unpacks new First Amendment

developments arising from the “Floyd Caselaw,” including trends in

municipal Monell claims and injunctive relief.

I. NIEVES V. BARTLETT AND PROTECTING THE PRESS

In 2019, the Supreme Court released their decision in a landmark § 1983

retaliatory arrest case, Nieves v. Bartlett. The case centered around a man,

Russell Bartlett, who was charged with disorderly conduct and resisting arrest

while attending a “raucous” weeklong festival in Alaska.

He subsequently

alleged his arrest was in retaliation for exercising his First Amendment right

to free speech, based on a confrontation with the arresting officers.

In the

Court’s opinion, Chief Justice John Roberts established a general rule that

probable cause should defeat a First Amendment retaliatory arrest claim.

As Roberts writes, “[b]ecause there was probable cause to arrest Bartlett, his

retaliatory arrest claim fails as a matter of law.”

Succinctly summing up the impact of the ruling, one lower court notes,

“Nieves makes clear that a First Amendment retaliatory arrest claim fails

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (citing Elrod v. Burns,

427 U.S. 347, 373 (1976)).

Nieves, 139 S. Ct. at 1717.

Id. at 1721.

Id. at 1723.

Id. at 1728.

596 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

when probable cause—an objectively reasonable legal justification for the

arrest—is evident.”

Framed another way, plaintiffs seeking a § 1983

retaliatory arrest claim must now prove that the defendant officer did not

have probable cause to pursue an arrest for any crime.

The case has special resonance for the press.

The late Justice Ruth

Bader Ginsburg, in her partial concurrence to the Court’s ruling, issued a

warning that Nieves will leave members of the press “with little protection

against police suppression of their speech.”

The case’s sole dissenter, Justice

Sonia Sotomayor, was more explicit about the decision’s impact on First

Amendment rights, using the case of a hypothetical citizen journalist arrested

for trespassing for stepping onto someone’s front yard while filming a

homeowner’s fiery confrontation with the police.

Under the Nieves rule,

Sotomayor asks, “Will this citizen journalist have an opportunity to prove

that the arrest violated her First Amendment rights?”

Nieves already has new relevance as journalists across the country push

back against seemingly retaliatory arrests they suffered during the summer of

2020. Specific, credible allegations and evidence entered into courtrooms

around the country make it clear that journalists were targeted—both with

force and with arrest—during protests that year.

Following George Floyd’s death while in the custody of the Minneapolis

Police Department, numerous journalists traveled to report on the protests

in the city. One of these journalists was Linda Tirado, who—while reporting

on the protests—was left permanently blind in one eye after she was shot

with a foam bullet by a police officer. She subsequently brought a claim

against the city and certain police officers under § 1983. The details of

Tirado’s experiences reporting on the protests in Minneapolis, as well as

those of other journalists, were “serious and troubling,” according to the

Bello Reyes v. McAleenan, No. 19-CV-03630-SK, 2019 WL 5214051, at *5 (N.D. Cal. July 16,

2019).

First Amendment–Nieves v. Bartlett, 133 HARV. L. REV. 272 (2019).

See Clay Calvert, Dissent, Disagreement and Doctrinal Disarray: Free Expression and the Roberts Court in 2020,

28 WM. & MARY BILL RTS. J. 865, 892 (2020) (“[T]he Nieves rule is both journalistically and

constitutionally important.”); John S. Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After

Nieves v. Bartlett, 120 COLUM. L. REV. 2275, 2275 (2020) (“The ruling threatens the ability

of journalists to bring viable civil claims to help deter pretextual arrests, since probable cause for

some minor offense will often be easy to articulate.”).

Nieves, 139 S. Ct. at 1735 (Ginsburg, J., concurring).

Id. at 1740 (Sotomayor, J., dissenting).

Id.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 597

court.

Though the incidents were not identical, the court acknowledged a

series of similar experiences where journalists faced police misconduct—

“journalists were identifiable as press, separated from protestors and at a

distance from police, and were not engaging in any threatening or unlawful

conduct.”

Taken as a whole, these police encounters may establish an

unconstitutional custom in Minneapolis of “targeting journalists for unlawful

reprisals” during the George Floyd protests.

The Black Lives Matter protests spurred by George Floyd’s death were

not limited to Minneapolis, however. A line of cases from Portland, Oregon

brought by publisher Index Newspapers demonstrates the animus that

journalists faced while covering protests in that city. The court found a

pattern of journalists being singled out for doing their jobs. Even during

peaceful demonstrations, the court wrote, “the record is replete with

instances in which members of the press were targeted.”

The court

highlighted at least forty-five examples of law enforcement using unlawful

force against clearly-identified members of the press—these instances

“provide exceptionally strong evidentiary support” for the finding that law

enforcement members “were motivated to target journalists in retaliation for

plaintiffs’ exercise of their First Amendment rights.”

Just from the cases that are currently moving forward in the federal

courts, it’s clear that journalists across the country have valid reasons to bring

First Amendment retaliation claims for the harm and arrests they suffered

covering protests in 2020. Because of their clearly defined role, cases

involving arrests of journalists typically feature particularly “compelling”

facts for finding a constitutional violation and a lack of probable cause.

These press cases are often used to model a particular right available to the

Tirado v. City of Minneapolis, 521 F. Supp. 3d 833, 846 (D. Minn. 2021). While Tirado’s lawsuit

only alleges incidents of unlawful showings of force against journalists, rather than arrests, the

substance of the claims could easily apply to journalists who faced unlawful arrests. Tirado even

alleges that her backpack was “hit with a bright green ballistic tracking round”—“used to designate

individuals for arrest”—during the protests. Id. at 837.

Id. at 841.

Id. at 846.

Index Newspapers v. U.S. Marshals Serv., 977 F.3d 817, 834 (9th Cir. 2020).

Id. at 829.

See, e.g., Molina v. City of St. Louis, No. 4:17-CV-2498, 2021 WL 1222432, at *7 (E.D. Mo. Mar.

31, 2021) (finding that the facts in a previous First Amendment retaliation case were especially

“compelling” in establishing a right without clear precedent in the circuit because the plaintiffs were

journalists, but confirming that the First Amendment “applies with equal force to citizens.”);

Stolarik v. City of New York, No. 15-CV-5858, 2017 WL 4712423, at *3 (S.D.N.Y. Sept. 7, 2017)

(finding that a group of cases “‘clearly foreshadowed’ the right of journalists—if not all citizens—to

record (photograph) police activity in public.”).

598 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

public or create a framework to articulate a constitutional claim. For

example, in evaluating a First Amendment right to film police activity, one

circuit court noted, “[a]s no doubt the press has this right, so does the

public.”

The Supreme Court has been clear, however, “that

the organized press has a monopoly neither on the First Amendment nor on

the ability to enlighten”

—“As indispensable as is the role of the press in a

free society, journalists and the media have ‘no special immunity from the

application of general laws.’”

Put another way, a journalist does not possess

any “special privilege” just for doing their job.

To be sure, there are many

situations where a reporter’s status as a member of the press is not a defense

of any sort to an arrest or legal justification for their actions.

Journalists

have no right to trespass on private property.

Journalists also have no right

to enter an area—however newsworthy it may be—where the general public

is barred.

And, journalists certainly have no right to interfere with or

impede ongoing police activity.

Although not cloaked with any unique constitutional protections,

journalists have an acknowledged role to play in a “free society”—“to

provide an independent source of information so that a citizen can make

informed decisions.”

In this role, the professional press are generally

“surrogates for the public.”

The Supreme Court has noted that journalists

Fields v. City of Philadelphia, 862 F.3d 353, 359 (3d Cir. 2017).

Dun & Bradstreet, Inc. v. Greenmoss Builders, 472 U.S. 749, 773 (1985).

Mosely v. City of Chicago, 252 F.R.D. 421, 426 (N.D. Ill. 2008), order vacated in part on reconsideration

sub nom. Mosley v. City of Chicago, 252 F.R.D. 445 (N.D. Ill. 2008) (quoting Branzburg v. Hayes,

408 U.S. 665, 683 (1972)).

United States v. Carpenter, 791 F.2d 1024, 1034 (2d Cir. 1986), aff’d, 484 U.S. 19 (1987).

E.g., Hendricks v. Pierce County, No. C13-5690, 2014 WL 1053318, at *4 (W.D. Wash. Mar. 19,

2014) (“[Plaintiff’s] claimed status as a journalist does not give her the unfettered right to document,

or even watch, any interaction she desires, and she has not plausibly plead that it does.”).

E.g., Skvorak v. Thurston County, No. C05-5100, 2006 WL 8455147, at *3–4 (W.D. Wash. Sept.

15, 2006) (rejecting an argument that plaintiffs, as reporters covering a protest, were “entitled to

special consideration” and instead finding that there was probable cause for the arrests because the

journalists “remained unlawfully on private property”—“The owner of the property had not given

plaintiffs permission to be on the property, whether they were members of the press or not.”).

See Branzburg, 408 U.S. at 684–85 (“Newsmen have no constitutional right of access to the scenes

of crime or disaster when the general public is excluded.”).

E.g., Cobarobio v. Midland County, No. MO:13-CV-00111, 2015 WL 13608102, at *27 (W.D.

Tex. Jan. 7, 2015), aff’d, 695 F. App’x 88 (5th Cir. 2017) (“This Court finds, while there may indeed

be a First Amendment right to photograph an active crime scene, it does not include intruding onto

that crime scene or interfering with police and first responders in the performance of their duties

during an emergency.”).

Dean v. Utica Cmty. Schs., 345 F. Supp. 2d 799, 804 (E.D. Mich. 2004).

Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 599

are “a mighty catalyst in awakening public interest in governmental affairs”

and “informing the citizenry of public events and occurrences.”

Indeed,

the press’ right of access is particularly “important”—“In a society in which

each individual has but limited time and resources with which to observe at

first hand the operations of his government, he relies necessarily upon the

press.”

Therefore, the press must be allowed “maximum freedom.”

Courts have also acknowledged that government officials may be

motivated to go after the press because of their reporting.

Just as with any

individual or group, “journalists should not be targeted and penalized on the

basis of their associations or content of their expression.”

As one circuit

court notes, “[w]hen wrongdoing is underway, officials have great incentive

to blindfold the watchful eyes of the Fourth Estate.”

This judicially recognized and defined role is distinct from other groups

who may seek to bring First Amendment retaliation claims, such as legal

observers. As one circuit court notes, while “case law has frequently observed

the importance of the press as surrogates for the public,” the court had “not

considered whether legal observers serve the same function.”

The judges

left the question open.

Similarly, although the Supreme Court has remarked that in the modern

world “the line between the media and others who wish to comment on

political and social issues becomes far more blurred”

—due to the rise of the

Internet and the decline of traditional print and broadcast media—citizen

journalists and bystanders may not share the same presumptions about

dissemination of information that protect some journalistic conduct as

Estes v. Texas, 381 U.S. 532, 539 (1965).

Courthouse News Serv. v. Brown, 908 F.3d 1063, 1069 (7th Cir. 2018) (quoting Cox Broad. Corp.

v. Cohn, 420 U.S. 469, 491–92 (1975)).

Estes, 381 U.S. at 539.

See Koala v. Khosla, 931 F.3d 887, 907 n.3 (9th Cir. 2019) (“Although the [Supreme] Court has

said that ‘the institutional press’ enjoys no ‘constitutional privilege beyond that of other

speakers,’ . . . it has long treated discrimination against the press as constitutionally suspect.”)

(quoting Citizens United v. FEC, 558 U.S. 310, 352 (2010)); Villarreal v. City of Laredo, Texas,

No. 20-CV-40359, 2021 WL 5049281, at *5 (5th Cir. Nov. 1, 2021) (“It should be obvious to any

reasonable police officer that locking up a journalist for asking a question violates the First

Amendment.”).

Guan v. Mayorkas, No. 19-CV-6570, 2021 WL 1210295, at *20 (E.D.N.Y. Mar. 30, 2021).

Leigh v. Salazar, 677 F.3d 892, 900 (9th Cir. 2012).

Index Newspapers v. U.S. Marshals Serv., 977 F.3d 817, 825 n.2 (9th Cir. 2020).

Id.

Citizens United, 558 U.S. at 352; see also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472

U.S. 749, 782 n.7 (Brennan, J., dissenting) (“Owing to transformations in the technological and

economic structure of the communications industry, there has been an increasing convergence of

what might be labeled ‘media’ and ‘nonmedia.’”).

600 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

expressive speech.

Protest medics—who almost universally do not benefit

from a judicially-recognized distinct role—face similar issues.

Looking outside of case law, established norms and customs across the

country make it clear that journalists carry certain presumptions about their

behavior and role when reporting on a protest. “Reporters have a

fundamental right to cover the demonstrations we’re seeing in Delaware and

across our country,” Delaware governor John Carney said in a statement

following the arrest of a reporter covering a protest in his state in 2020.

“They should not be arrested for doing their jobs,” Carney said. “That’s not

acceptable.”

Arkansas governor Asa Hutchinson echoed this sentiment, stating during

a news conference that journalists “should not be arrested.”

“When they’re

identified as a journalist, obviously, they should go about their business,”

Hutchinson said, following the detention of several journalists at protests in

Arkansas the same year.

Notably, Carney is a Democrat from a solidly blue

state and Hutchinson is a Republican from a solidly red state.

In practice, this sentiment has manifested in various governmental

systems that create special exemptions and advantages for the press.

Legislators and regulations recognize “that effective newsgathering requires

greater levels of access than what the First Amendment provides,” according

to a Harvard University report on media credentials.

It is normal for

government policies, therefore, to grant the press “certain privileges to do

things that ordinary citizens may not.”

General curfew orders exempting

See Cummins v. Bat World Sanctuary, No. 02-12-00285-CV, 2015 WL 1641144, at *8 (Tex. App.

Apr. 9, 2015) (noting that while the press serves an “important purpose” “entitling it to special

protections under the First Amendment,” “private citizens now have a greater ability to also serve

that role, though usually to a lesser degree”).

See, e.g., Wise v. City of Portland, 483 F. Supp. 3d 956, 967 (D. Or. 2020) (“Nowhere did the court

recognize that participating in a protest as a medic is a distinct type of expressive conduct.”) (citing

Abay v. City of Denver, 445 F. Supp. 3d 1286 (D. Colo. 2020)).

Governor John Carney (@JohnCarneyDE), TWITTER (June 9, 2020, 9:35 PM),

https://twitter.com/JohnCarneyDE/status/1270529883299631104 [https://perma.cc/K46D-

GBXZ].

Id.

Brent Renaud, KATV Journalist Detained While Livestreaming Little Rock Protests, U.S. PRESS FREEDOM

TRACKER (June 2, 2020), https://pressfreedomtracker.us/all-incidents/katv-journalist-detained-

while-livestreaming-little-rock-protests/ [https://perma.cc/J3AD-YR4G].

Id.

Jeffrey Hermes, John Wihbey, Reynol Junco & Osman Tolga Aricak, Who Gets a Press Pass? Media

Credentialing Practices in the United States, SHORENSTEIN CTR. ON MEDIA, POL. & PUB. POL’Y (June

2014), https://shorensteincenter.org/wp-content/uploads/2014/06/Press-Pass-Report.pdf

[https://perma.cc/E59P-MXSB].

Id.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 601

journalists, for example, demonstrate that “state and local governments have

concluded that press access . . . is both important and workable.”

Another such privilege is the issuance of press passes or other credentials,

which may allow reporters access to certain areas or conjure up presumptions

of journalistic independence when reporting in the field.

Federal, state, and

local government officials “routinely provide the press with special rights of

access to government-controlled information and places,” notes the

University of Georgia School of Law’s Sonja R. West.

These credentials

offer the press unique access to everything from government buildings, press

conferences, and other non-public spaces to executions, military operations,

and crime and disaster scenes.

When reporting from a protest, press passes

were traditionally viewed as “powerful symbols of neutrality that helped

protect journalists.”

Importantly for this paper, the dispersal orders and other ordinances

typically at issue in cases involving protests tend to exempt the press.

noted above, many of the recent journalist arrests that led to § 1983 lawsuits

occurred in jurisdictions where press had been exempted from generally

applicable curfews.

This was typical of the protests that spread across the

country in 2020.

As the New York Times reported in June of that year,

cities across the country “recognized the special status of journalists by

exempting them from the curfews that have gone into effect in recent days.”

Goyette v. City of Minneapolis, 338 F.R.D. 109, 117 (D. Minn. 2021).

Genevra Kay Loveland, Comment, Newsgathering: Second-Class Right Among First Amendment Freedoms,

53 TEX. L. REV. 1440, 1460 (1975) (“The press has the same right of access [as the public], similarly

subject to police power restrictions; however police often allow reporters preferential access through

the issuance of press passes.”).

Sonja R. West, Favoring the Press, 106 CALIF. L. REV. 91, 119 (2018).

Id.

Press Pass Offering Little Defense for Journalists Caught in the U.S. Fray, TAMPA BAY TIMES (June 3, 2020),

https://www.tampabay.com/news/nation-world/2020/06/03/press-pass-offering-little-defense-

for-journalists-caught-in-the-us-fray/ [https://perma.cc/L9S7-VLMD].

E.g., Menotti v. City of Seattle, 409 F.3d 1113, 1125 (9th Cir. 2005) (noting an exemption for

credentialed press members from a government order prohibiting access to certain municipal areas

in the face of protests).

E.g., Sasso v. City of Dall., No. 3:20-CV-1398-S, 2020 WL 2839217, at *2 (N.D. Tex. June 1, 2020)

(exempting “members of the news media” from a curfew).

See Jennifer M. Kinsley, Black Speech Matters, 59 U. LOUISVILLE L. REV. 1, 9–10 (2020) (noting that

although “[m]any cities responded to the protests by enacting and enforcing overnight curfews”

orders such as the one in Cincinnati exempted members of the press as “essential workers.”).

Marc Tracy, A.C.L.U. Sues Minneapolis, Claiming Police Tactics Violated Freedom of Press, N.Y. TIMES

(June 3, 2020), https://www.nytimes.com/2020/06/03/business/aclu-sues-police-

minneapolis.html [https://perma.cc/6TYS-DTGH].

602 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

Similar considerations have been enshrined in statute, as well as

government orders.

California’s penal code, for example, allows “a duly

authorized representative of any news service, newspaper, or radio or

television station or network” to enter areas otherwise closed due to a riot or

other civil disobedience.

Similarly, Seattle’s municipal code creates a press

exemption for failure to disperse orders, stating that these orders do not apply

“to a news reporter or other person observing or recording the events on

behalf of the public press or other news media.”

Although the below analysis will focus on the professional press, this

paper will later address whether other groups—such as legal observers,

citizen journalists, and protest medics—can effectively utilize a similar

framework.

II. WHAT IS PROTECTED WHEN REPORTING ON, RECORDING, OR

OBSERVING POLICE ACTION?

What is the reporter doing when they anchor a broadcast from the

middle of a protest, or focus their camera on a police officer, or just jot down

notes to potentially use in a future story? Is this different than the legal

observer who monitors how police interact with the public, or the citizen

journalist who walks by and whips out their phone to record something that

catches their eye?

Courts inevitably face these questions when defining the precise First

Amendment right raised by a retaliatory arrest claim. Broadly, these

plaintiffs posit that they’re engaging with police activity—a matter of public

interest—either by reporting, recording, or just watching. Although the

specific rights at play may not be found in the text of the constitution itself,

the Supreme Court has noted that the First Amendment is “broad enough

to encompass those rights that, while not unambiguously enumerated in the

very terms of the Amendment, are nonetheless necessary to the enjoyment

of other First Amendment rights.”

E.g., ARK. CODE ANN. § 5–71–206 (B) (1975) (establishing a defense to prosecution for “the offense

of failure to disperse” if the arrested individual is “a news reporter or other person observing or

recording the events on behalf of the news media”).

CAL. PENAL CODE § 409.5 (d) (West 1997).

SEATTLE MUN. CODE 12A.12.020 (A) (1973).

For an argument that “courts should create a legal observer exemption from

police dispersal orders,” see Erica D. Lunderman, Protecting the Protectors: Preserving and Enhancing the

Rights of Legal Observers, 21 MARQ. BENEFITS & SOC. WELFARE L. REV. *29 (2020).

Globe Newspaper v. Sup. Ct. Norfolk Cnty., 457 U.S. 596, 604 (1982) (discussing a constitutional

“right of access to criminal trials”).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 603

Courts typically classify this protected First Amendment right in one of

two distinct ways.

In one line of cases, courts have found that the plaintiff

is engaging in “expressive conduct,” akin to some form of speech. This

conduct is protected, according to these cases, because as speech it is

concerned with the communication of ideas and dissemination of

information. Other courts, however, have found that the plaintiffs are

invoking their right to acquire information. The protected conduct that falls

under this banner seems to be broader than just speech and other expressive

conduct.

Although the rights at issue in discussions of “freedom of expression” and

“access to information” are both “rooted in First Amendment principles,”

the cases have “developed along distinctly different lines.”

While most

decisions seem to draw from both lines of cases,

some have declared that

the right fits solely within one camp. This not only has implications for the

scope and definition of the right,

but also may impact whose conduct is

actually protected.

For example, a case arising from the Occupy Wall Street protests,

Higginbotham v. City of New York, found that recording a protest is protected

under the First Amendment as “an essential step towards an expressive

activity.”

The court, however, attributed the right to conduct “performed

by a professional journalist who intends, at the time of recording, to

disseminate the product of his work”—implying that this protection might

not exist for parties who are not planning to disseminate the information.

By contrast, when courts have framed the right as concerning access to

information, as in Glik v. Cunniffe, it made no difference that the plaintiff was

“a private individual, and not a reporter, gathering information about public

officials.”

Rather, the court established, the “First Amendment right to

gather news”—derived from the public’s right of access to information—is

“not one that inures solely to the benefit of the news media.”

See, e.g., Knight v. Montgomery Cnty., 470 F. Supp. 3d 760, 765 (M.D. Tenn. 2020).

S.H.A.R.K. v. Metro Parks Serving Summit Cnty., 499 F.3d 553, 559 (6th Cir. 2007).

See, e.g., Turner v. Lieutenant Driver, 848 F.3d 678, 688–89 (5th Cir. 2017).

Stephanie Johnson, Comment, Legal Limbo: The Fifth Circuit’s Decision in Turner v. Driver Fails to

Clarify the Contours of the Public’s First Amendment Right to Record the Police, 59 B.C. L. REV. E. SUPP. 245,

261 (2018) (“The Fifth Circuit established that the public has a First Amendment right to video

record the police without adding any context or support to that right, outside First Amendment

principles.”).

Higginbotham v. City of N.Y., 105 F. Supp. 3d 369, 378 (S.D.N.Y. 2015).

Id.

Glik v. Cunniffe, 655 F.3d 78, 83 (1st Cir. 2011).

Id.

604 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

A. Protected expressive conduct

The First Amendment “rests on the assumption that the widest possible

dissemination of information . . . is essential to the welfare of the public.”

Generally, “the creation and dissemination of information are speech within

the meaning of the First Amendment” and therefore subject to certain

protections.

Where there is a “mutual desire to communicate” between the

press and their source, “news gathering and news dissemination cannot be

disassociated.”

Assuming that photographing and filming are expressive—and therefore

are protected by the First Amendment

—“it is difficult to see why that

protection should disappear simply because their subject is public police

activity.”

Under this line of cases, the First Amendment protects “the

recording of matters of public interest” as the “creation of speech.”

One circuit court has emphasized the expressive qualities of the “First

Amendment right to film matters of public interest”—“decisions about

content, composition, lighting, volume, and angles, among others, are

expressive in the same way as the written word or a musical score.”

Another circuit proposes a simple analogy to explain the protections on

recording. The court notes that “banning photography or note-taking at a

public event would raise serious First Amendment concerns” because of its

impact on how that information may be distributed.

That law “would

obviously affect the right to publish the resulting photograph or disseminate

a report derived from the notes.”

For this same reason, recording matters

of public interest must be protected.

Certain circuits seem to place this right primarily, if not solely, within the

expressive conduct framework. When the Seventh Circuit acknowledged the

right in a 2012 case, American Civil Liberties Union of Illinois v. Alvarez, the court

Associated Press v. United States, 326 U.S. 1, 20 (1945).

Sorrell v. IMS Health, 564 U.S. 552, 570 (2011).

Washington Post v. Kleindienst, 357 F. Supp. 770, 773–74 (D.D.C. 1972).

See Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021) (“The acts of taking photographs

and recording videos are entitled to First Amendment protection because they are an important

stage of the speech process that ends with the dissemination of information about a public

controversy.”)

Higginbotham v. City of New York, 105 F. Supp. 3d 369, 379 (S.D.N.Y. 2015).

M.C. Through Chudley v. Shawnee Mission Unified Sch. Dist. No. 512, 363 F. Supp. 3d 1182,

1195, 2012 (D. Kan. 2019).

Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203 (9th Cir. 2018).

ACLU of Illinois v. Alvarez, 679 F.3d 583, 595–96 (7th Cir. 2012).

Id. at 596.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 605

wrote that, “the act of making [a] recording is necessarily included within the

First Amendment’s guarantee of speech and press rights as a corollary of the

right to disseminate the resulting recording.”

In a more recent case, the

circuit reaffirmed that “gathering information for news dissemination” is a

First Amendment-protected form of expressive activity.

Framed

differently, the Eighth Circuit found that photography or recording

“unrelated to an expressive purpose . . . may not receive First Amendment

protection.”

B. The right to acquire information

“Members of an organized society, united for their common good” have

a “natural right” to “acquire information.”

100

The Supreme Court has

consistently held that the Constitution protects the right to “receive

information” as the First Amendment protects the right to “receive

information and ideas.”

101

This reading is by definition broader than the scope of expressive

conduct—because the First Amendment “embraces the right to distribute

literature,” it also “necessarily protects the right to receive it.”

102

The

“peripheral rights” that derive from the First Amendment—“the right to

receive” and “freedom of inquiry”—make the specific constitutional rights

from the freedom of speech and press more secure.

103

These cases describing the First Amendment’s “right of access to

information” establish that the public has a right to record matters of public

interest.

104

As one court notes—“The First Amendment protects the right to

gather information about what public officials do on public property, and

specifically, a right to record matters of public interest. Pretty simple rule.”

105

Id. at 595 (emphasis in original).

John K. MacIver Inst. for Pub. Pol’y v. Evers, No. 20-1814, 2021 WL 1324386, at *5 (7th Cir.

2021).

Ness v. City of Bloomington, 11 F.4th 914, 923 (8th Cir. 2021); but see Chestnut v. Wallace, 947

F.3d 1085, 1090 (8th Cir. 2020) (finding a “clearly established” constitutional right “to watch police-

citizen interactions at a distance” in the Eighth Circuit).

100

Grosjean v. American Press Co., 297 U.S. 233, 243 (1936).

101

Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980).

102

Martin v. City of Struthers, Ohio, 319 U.S. 141, 143 (1943).

103

Griswold v. Connecticut, 381 U.S. 479, 482–83 (1965).

104

Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (finding that “the First Amendment’s

right of access to information” grants the public the “right to record—photograph, film, or audio

record—police officers conducting official police activity in public areas”).

105

Dunn v. City of Fort Valley, 464 F. Supp. 3d 1347, 1354 (M.D. Ga. 2020) (citing Smith, 212 F.3d

at 1333).

606 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

Courts have engaged in a continuing set of steps to spin out this right

from the text of the constitution. In the 1970s, the Supreme Court concluded

that because the First Amendment protects freedom of the press there must

be “some protection for seeking out the news.”

106

Over the first few decades

of the 21

Century, circuit courts have extended this logic, finding that if

there is a “right to gather news,” protections must also exist for recording

matters of public interest—such as government officials on the job—to create

the news itself.

107

To take this analysis one step further, “if the constitution

protects one who records police activity, then surely it protects one who

merely observes it—a necessary prerequisite to recording.”

108

Certain circuits have established that this right to engage with matters of

public interest derives solely from citizen’s access to information. The Third

Circuit, in Fields v. City of Philadelphia, found that this right “falls squarely

within the First Amendment right of access to information” protected by the

Constitution even “absent some sort of expressive intent.”

109

The First

Amendment, the circuit found, “goes beyond protection of the press and the

self-expression of individuals” to protect “the public’s right of access to

information about their officials’ public activities.”

110

C. Journalists and protected conduct

The First Amendment “protects the media’s right to gather news.”

111

is “beyond dispute” that “journalists actively reporting a news event” are

engaged in First Amendment protected conduct.

112

This conduct is

protected regardless of whether it derives from protections on expressive

activity, or the right to acquire information.

106

Branzburg v. Hayes et al. 408 U.S. 665, 681 (1972).

107

Dyer v. Smith, No. 3:19-CV-921, 2021 WL 694811, at *7 (E.D. Va. Feb. 23, 2021) (compiling

circuit court decisions); see also Fields, 862 F.3d at 358 (“The First Amendment protects actual

photos, videos, and recordings . . . and for this protection to have meaning the Amendment must

also protect the act of creating that material.”).

108

Chestnut v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020).

109

Fields, 862 F.3d at 362.

110

Id. at 359 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978)).

111

Daily Herald Co. v. Munro, 838 F.2d 380, 384 (9th Cir. 1988); see also Bowens v. Superintendent

of Miami South Beach Police Dep’t, 557 F. App’x 857, 863 (11th Cir. 2014) (finding that “a

member of the press plausibly states a First Amendment violation by alleging he was arrested for

taking photographs of alleged police misconduct and police then deleted the photographs he

took.”).

112

Quraishi v. St. Charles County, Missouri, No. 4:16-CV-1320 NAB, 2019 WL 2423321, at *6 (E.D.

Mo. June 10, 2019), aff’d in part, rev’d in part and remanded, No. 19-2462, 2021 WL 278347 (8th Cir.

Jan. 28, 2021).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 607

Under an expressive activity framing that draws on information

dissemination, the “foundational principle” of the First Amendment’s press

clause is that “the media serves the public” by offering information for

citizens to consume.

113

Courts have routinely found that journalists who

clearly self-identified as a member of the press create a reasonable belief that

they are inhabiting the unique role of the press and plan to disseminate the

information they are gathering.

114

This has often taken on particular importance in protest cases.

115

Burdett v. Reynoso, a reporter “wearing a press pass around his neck” and

filming an arrest made it apparent “to even a casual observer” that he was

engaging in specific protected First Amendment activities.

116

Similarly, in

Benjamin v. Peterson, the court found it would be reasonable to conclude that

“officers should have been on notice” an individual was engaged in protected

activity because he “was wearing press credentials, was carrying a video

camera, and identified himself as ‘media.’”

117

The press also engage in protected conduct when they merely collect and

document information. In Index Newspapers v. City of Portland, the court found

that members of the press engaged in constitutionally protected activity

under the First Amendment by “newsgathering, documenting, and recording

government conduct” during protests.

118

Index Newspapers expanded on the media’s unique role in acquiring

information during a protest, noting, “the point of a journalist observing and

documenting government action is to record whether the ‘closing’ of public

streets (e.g., declaring a riot) is lawfully originated and lawfully carried out.”

119

Without journalists on the scene, the court wrote, “there is only the

government’s side of the story to explain why a ‘riot’ was declared and . . .

whether law enforcement acted properly in effectuating that order.”

120

113

Alaska Landmine v. Dunleavy, No. 3:20-CV-00311-JMK, 2021 WL 686931, at *7 (D. Alaska Jan.

22, 2021).

114

E.g., Garcia v. Montgomery County, Maryland, 145 F. Supp. 3d 492, 524 (D. Md. 2015) (finding

that a videographer “audibly [identifying] himself as a member of the press . . . would support the

reasonable belief that [he] intended to disseminate his recording to the public.”).

115

E.g., Tirado v. City of Minneapolis, 521 F. Supp. 3d 833, 836 (D. Minn. 2021) (finding that a

journalist “was identifiable as a member of the press because she wore a standard reflective press

credential around her neck [and] carried a professional-grade camera and lens.”).

116

Burdett v. Reynoso, No. C-06-00720 JCS, 2007 WL 2429426, at *28 (N.D. Cal. Aug. 23,

2007), aff’d 399 F. App’x 276 (9th Cir. 2010).

117

Benjamin v. Peterson, No. 12220 DWF/SER, 2013 WL 3097271, at *6 (D. Minn. June 18, 2013).

118

Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1142 (D. Or. 2020).

119

Id. at 1146.

120

Id.

608 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

III. PROVING THE CAUSAL CONNECTION AND ARGUING AGAINST

PROBABLE CAUSE

The final element a plaintiff needs to prove for a First Amendment

retaliatory arrest claim is that they suffered a harm because of some

retaliatory motivation by a state actor. This “but-for causation” is often

difficult to prove, but as the Supreme Court notes in Nieves, probable cause

“speaks to the objective reasonableness of an arrest.”

121

If there was probable

cause for an arrest, it’s likely that it was not caused due to a retaliatory

motivation, according to the Court.

122

A demonstration that there was no

probable cause, however, provides “weighty evidence that the officer’s

animus caused the arrest.”

123

On its face, the Nieves decision appears to be a significant barrier for

journalists—as well as other supposed non-protestors at a protest—bringing

a retaliatory arrest case.

124

Meyers v. City of New York, a case arising from the

2011 Occupy Wall Street demonstrations that was subsequently analyzed

under Nieves, demonstrates the potential problem these would-be plaintiffs

face with protests and probable cause.

125

In a Second Circuit decision, the

Meyers judges note that protestors’ “refusal to comply with that lawful

dispersal order supplied probable cause to arrest them for disorderly

conduct,” which in turn invoked Nieves’s barrier to retaliatory arrest claims.

126

Similarly, the probable cause argument for arresting anyone at a protest

seems straightforward—a dispersal order was issued, certain journalists, legal

observers, or other individuals did not disperse, and they were therefore

arrested.

127

As Northern Kentucky University’s Jennifer Kinsley notes, “By

121

Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019).

122

Id.

123

Id.

124

First Amendment—Freedom of Speech—Retaliatory Arrest—Nieves v. Bartlett, 133 HARV. L. REV. 272,

279 (2019) (arguing that Nieves “may authorize retaliatory arrests for engaging in certain protected

activities . . . because such retaliatory arrests are commonplace”) (emphasis in original); John S.

Clayton, Policing the Press: Retaliatory Arrests of Newsgatherers After Nieves v. Bartlett, 120 COLUM. L.

REV. 2275, 2288 (2020) (“At protests in particular, it is likely that almost any person present—

including a newsgatherer—is ‘guilty of some minor infraction.’ Thus, while a journalist at a protest

may not need to ask ‘permission’ to gather news, they nonetheless rely on a favorable exercise of

discretion by police to not arrest or otherwise interfere with the reporting process—even when such

interference may serve the state’s interest.”).

125

Meyers v. City of N.Y., 812 F. App’x 11, 14–15 (2d Cir. 2020).

126

Id.

127

Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-01230-BAS-AHG, 2020

WL 5759752, at *9 (S.D. Cal. Sept. 28, 2020) (finding that the plaintiff “has not shown the absence

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 609

declaring a curfew and arresting those in violation of it, lawmakers have

transformed otherwise constitutionally-protected political expression into

criminal activity.”

128

Notably, the “state of mind” of an individual arrested at a protest—

whether that person believed “they were participating in a sanctioned, First–

Amendment–protected” activity or intentionally breaking the law—is

“irrelevant to the question of probable cause.”

129

Where there is otherwise

probable cause for the arrest, a plaintiff’s “status as a ‘participant’ or member

of the press does not affect the outcome of [the] case.”

130

This analysis, however, ignores an open question that has arisen

repeatedly in cases where journalists, legal observers, and other groups faced

arrest while reporting on and monitoring protests. In short, as teased but not

answered in a 2020 federal court ruling, does an otherwise peaceful and law-

abiding individual engaged in certain constitutionally protected

conduct need to stop doing their job when faced with a seemingly lawful

general dispersal order?

131

This thorny subject has been raised as both a matter of constitutional

rights and statutory interpretation. When courts have previously grappled

with this issue, other concerns—such as a separate justification for the

arrest

132

or pre-existing legal circumstances that make the problem

superfluous

133

—often allow judges to circumvent making a ruling one way

or the other.

134

of probable cause for his arrest because City Defendants had probable cause to arrest [him] for

failing to disperse.”); Owen v. City of Buffalo, N.Y., 465 F. Supp. 3d 267, 277 (W.D.N.Y. 2020)

(“[T]he police had probable cause to arrest [plaintiff] and take him into custody for disorderly

conduct. Even if they did not have probable cause to arrest him for that offense, they had probable

cause to arrest and take him into custody for simply disobeying the lawful order of a police officer.”).

128

Jennifer M. Kinsley, Black Speech Matters, 59 U. LOUISVILLE L. REV. 1, 11 (2020).

129

Garcia v. Bloomberg, 662 F. App’x 50, 53 (2d Cir. 2016).

130

Skvorak v. Thurston Cnty., No. C05-5100 RBL, 2006 WL 8455147, at *1 (W.D. Wash. Sept. 15,

2006).

131

Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1126 (D. Or. 2020); but see

Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1190 (9th Cir. 2018) (“We are sensitive

to journalists’ constitutional right to investigate and publish exposés on [matters of public

importance] . . . . However, the First Amendment right to gather news within legal bounds does

not exempt journalists from laws of general applicability.”).

132

Higginbotham v. City of N.Y., 105 F. Supp. 3d 369, 373 (S.D.N.Y. 2015) (passing on resolving

whether a journalist covering a protest is “congregating” with protesters due to probable cause

based on a separate unlawful act).

133

Index Newspapers, 480 F. Supp. 3d at 1126 (citing a preliminary injunction already in place).

134

But see Wise v. City of Portland, 483 F. Supp. 3d 956, 962 (D. Or. 2020) (considering and rejecting

“the narrow issue of whether protest medics . . . should effectively receive special dispensation under

610 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

Assuming for the purposes of this paper, however, that there is no general

exemption to dispersal orders or special rights for non-protestors at a protest,

these groups have two potential ways to fulfil the third prong of the First

Amendment retaliatory arrest claim. A plaintiff can either argue that their

arrest fits into the narrow exemption the Supreme Court articulated to Nieves’

probable cause requirement, or they can argue that there was no probable

cause for their arrest, as a matter of law.

A. The Nieves exemption

In Nieves, the Supreme Court outlines a “a narrow qualification” that is

effectively an exemption from the “no-probable cause” requirement.

135

This

exemption, the Court notes, should be evoked in “circumstances where

officers have probable cause to make arrests, but typically exercise their

discretion not to do so.”

136

Chief Justice Roberts, writing for the majority,

describes a hypothetical jaywalker who is arrested after complaining about

police conduct.

137

As jaywalkers are not typically arrested, the argument

goes, this person should not have their First Amendment claim thrown out

based on a weak version of probable cause.

In her dissent in Nieves, Justice Sotomayor critiques the “clarity” of the

probable cause exemption. “What exactly the Court means by ‘objective

evidence,’ ‘otherwise similarly situated,’ and ‘the same sort of protected

speech’ is far from clear,” she writes.

138

Justice Neil Gorsuch also appears to

argue that the new standard is open to interpretation—citing a previous case

to note that the Court “seems to indicate that something like Armstrong’s

standard might govern a retaliatory arrest claim when probable cause exists

to support an arrest.”

139

Both Justices express hope that lower courts follow

this rule “commonsensically.”

140

the First Amendment to remain in areas where police have issued lawful dispersal orders,” citing

practical and constitutional reasons.)

135

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).

136

Id.

137

Id. (“If an individual who has been vocally complaining about police conduct is arrested for

jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights

to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable

cause for the arrest.”).

138

Id. at 1741 (Sotomayor, J., dissenting).

139

Id. at 1733 (Gorsuch, J., concurring in part and dissenting in part).

140

Id. at 1734 (Gorsuch, J., concurring in part and dissenting in part); Id. at 1741 (Sotomayor, J.,

dissenting). There is some indication that courts have taken these concerns to heart. See, e.g., Lund

v. City of Rockford, Ill., 956 F.3d 938, 945 (7th Cir. 2020) (“We agree with Justice Gorsuch’s

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 611

Courts appear to have approached the Nieves exemption in two ways—

one narrow and one more broad. In the narrow interpretation of the

exemption, courts focus on whether the plaintiff can point to

contemporaneous evidence that similarly situated persons not engaged in

protected speech were not arrested. In Owen v. City of Buffalo, New York, for

example, a street preacher arrested outside of a Donald Trump rally was not

able to invoke the Nieves exemption because there was no evidence “that

other individuals who, like him, lacked a ticket for the Trump rally were,

unlike him, not arrested after refusing to leave the no-protest zone.”

141

Here,

the court focused only on the single Trump rally in question.

The broad approach, however, seems to follow Justice Gorsuch’s and

Justice Sotomayor’s commonsense plea, as courts look to a practice or history

of not arresting the type of person in question. In Ballentine v. Las Vegas

Metropolitan Police Department, a group of activists was arrested for placing

graffiti after using chalk to write messages outside a law enforcement

agency.

142

As the judge writes in Ballentine, “Nieves directs me to look to

whether Metro officers typically arrest individuals for chalking on

sidewalks.”

143

The court found that the plaintiff could invoke the Nieves

exemption because there was no evidence that the police department “ever

arrested anyone besides the plaintiffs for chalking on the sidewalk.”

144

Ballentine, the focus was on the overall practice of the police, not a single

incident.

Looking specifically at cases involving mass arrests for failure to disperse

at a protest, courts have employed both the narrow and the broad

approaches. In Meyers, described above, the court wrote the Nieves exemption

“exists where there is ‘objective evidence’ that the police refrained from

interpretation of the majority opinion in Nieves; the majority does not appear to be adopting a rigid

rule that requires, in all cases, a particular form of comparison-based evidence . . . . [W]e surmise

that Justices Gorsuch and Sotomayor are correct—common sense must prevail.”); McKenzie v.

City of N.Y., No. 17 Civ. 4899 (PAE), 2019 WL 3288267, at *9 (S.D.N.Y. July 22, 2019) (stating

that evidence for the Nieves exemption “could potentially include admissions by officers, statistical

evidence of the arrest rates for the offense in question, or other direct evidence.”) (citing Nieves, 139

S. Ct. 1715, 1727 (2019) (opinions of Gorsuch, J., concurring in part and dissenting in part and

Sotomayor, J., dissenting)).

141

Owen v. City of Buffalo, N.Y., 465 F. Supp. 3d 267, 275 (W.D.N.Y. 2020).

142

Ballentine v. Las Vegas Metro. Police Dep’t, 480 F. Supp. 3d 1110, 1113–14 (D. Nev. 2020), aff'd

in part, rev'd in part and remanded sub nom. Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022)

143

Id. at 1116; see also Castro v. Salinas, No. 5:18-CV-00312-JKP-ESC, 2020 WL 3403071, at *5

(W.D. Tex. June 19, 2020) (finding that, to invoke the Nieves exemption, a plaintiff alleging

retaliatory arrest needs to show evidence that “police officers routinely do not arrest persons” for

the offense in question).

144

Ballentine, 480 F. Supp. 3d at 1115.

612 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

arresting similarly situated people not engaged in speech.”

145

The phrasing

“the police refrained” seems to define it specifically as examining police

action at the time of the arrest. This reading is supported by the evidence

the court highlights—in the case, which was about Occupy Wall Street

protestors, no facts could support the Nieves exemption because “the NYPD

arrested ‘everyone who remained in the Park’ following the dispersal

order.”

146

The court, it seems, was solely looking at the events of that

evening.

Conversely, in Cervantes v. San Diego Police Chief Shelley Zimmerman, which

concerned a legal observer at a protest outside a Trump rally, the court took

the broad approach. Unlike the Meyers court, which just looked at the one

protest, here the court articulated the Nieves exemption as needing “objective

evidence that police have ‘typically exercised their discretion’ not to arrest

others similarly situated” to the arrested individual.

147

Applied to the case,

this would have allowed the plaintiff to show that “legal observers who

publicly challenge police conduct in their capacity as attorneys” are not

typically arrested at protests.

148

The court was looking for a typical practice

of the police, not just the one Trump rally in the case.

1. Journalists and the Nieves exemption

Few cases involving journalists have been analyzed under the Nieves

exemption. Nigro v. City of New York, however, involved a professional

journalist and photographer who was arrested during a protest against then-

presidential candidate Donald Trump in 2016.

149

He claimed that the

arrest—for disorderly conduct and jaywalking—was in retaliation for his

First Amendment protected conduct, as he was photographing police

officers.

The court found his case “troubling” and wrote that the allegations raise

“the specter of a police officer singling out a member of the media in

retaliation for his First Amendment activity.”

150

While the plaintiff’s arrest

took place before the Supreme Court ruled on this issue, the court noted that

145

Meyers, 812 F. App’x at 15.

146

Id.

147

Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-01230-BAS-AHG, 2020

WL 5759752, at *9 (S.D. Cal. Sept. 28, 2020).

148

Id.

149

Nigro v. City of New York, No. 19-CV-2369, 2020 WL 5503539, at *1 (S.D.N.Y. Sept. 11, 2020).

While the incident in the case took place before Nieves was decided and, therefore, would not impact

the district court’s decision, the judge still undertook a Nieves analysis as a thought experiment.

150

Id. at *7.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 613

his “retaliatory arrest claim would seem to fall squarely within the Nieves

exemption.”

151

The case also seemed to validate the Justices’ fears about the potential

impact on the press—the court made a point that “it was precisely facts like

those alleged here that caused the Supreme Court concern in Nieves.”

152

This

exemption may be a lifeline for members of the media bringing similar claims

in the future.

B. The path to arguing against probable cause runs through the “individualized

suspicion” requirement

A constitutional requirement mandated by the Fourth Amendment,

probable cause rests on “a reasonable ground for belief of guilt.”

153

This

generally requires individualized suspicion that a specific person has broken

the law.

154

An individualized probable cause requirement can get somewhat

fuzzy in a mass arrest situation, such as protests.

155

Individualized suspicion,

however, is still needed to establish probable cause for an arrest, even in the

mayhem of a protest.

156

As probable cause is a reasonableness analysis, specific circumstances are

given weight when determining an individual’s guilt. For instance, the court

in Dinler v. City of New York cited dispersal orders’ importance in “making such

individualized determinations of probable cause” during a protest.

157

Officers, however, are still expected to ensure an individual’s likely guilt

151

Id. at *4.

152

Id. at *7.

153

U.S. Const. art. IV; Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“the probable-cause standard

is a ‘“practical, nontechnical conception’” that deals with “‘the factual and practical considerations

of everyday life on which reasonable and prudent men, not legal technicians, act’”).

154

See, e.g., Andrew E. Taslitz, What Is Probable Cause, and Why Should We Care?: The Costs, Benefits, and

Meaning of Individualized Suspicion, 73 L. & CONTEMP. PROBS. 145, 146 (2010); Karen J. Pita

Loor, Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality in Protest Policing,

100 B.U. L. REV. 817, 847 (2020) (arguing that a group probable cause standard for protestors

“substantially deviates from and is inconsistent with traditional individualized determinations of

suspicion.”).

155

Dinler v. City of New York, No. 04-CV-7921, 2012 WL 4513352, at *6 (S.D.N.Y. Sept. 30, 2012)

(assessing and rejecting “a theory of collective or group” probable cause).

156

See Dinler, 2012 WL 4513352, at *6 (finding that individualized probable cause “remains the

lodestar” even “in a large, and potentially chaotic, group setting.”); see also Amanda Peters, Mass

Arrests & the Particularized Probable Cause Requirement, 60 B.C. L. Rev. 217, 269 (2019) (“Supreme

Court opinions addressing probable cause in multi-suspect searches and arrests . . . reiterate that

probable cause must be particularized. This fact alone settles the area of law and puts it beyond

the realm of debate.”).

157

Dinler, 2012 WL 4513352, at *6.

614 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

before making an arrest. In Hickey v. City of Seattle, the court found that

“without individualized investigation,” officers at the scene of a protest

“could not distinguish which of the protestors had committed or were

committing arrestable offenses.”

158

C. A clearly identified member of the press should enjoy protection against individualized

suspicion

Although the Supreme Court has long maintained a broad and open

interpretation of the First Amendment’s press clause,

159

the 1960s and 1970s

may have been the reporters’ legal “Glory Days”—both for the cases the

Court took on and the way Justices described the professional press.

160

During this period, Justice Potter Stewart was arguably the highest-profile

advocate for a distinct set of press rights that should be available to

professional journalists.

161

Writing in a concurrence in Houchins v. KQED, a

1978 case about press access to a county jail, Justice Stewart makes two

arguments on behalf of the press, one constitutional and one practical.

It is “no constitutional accident” that the First Amendment “speaks

separately of freedom of speech and freedom of the press,” according to

Stewart.

162

This distinction is rather “an acknowledgment of the critical role

played by the press in American society.”

163

His practical argument, drawing

from this constitutional analysis, posits that, therefore, “equal access” to

information “must be accorded more flexibility in order to accommodate the

practical distinctions between the press and the general public.”

164

158

Hickey v. City of Seattle, No. C00-1672, 2006 WL 3692658, at *7 (W.D. Wash. Dec. 13, 2006);

Dinler, 2012 WL 4513352, at *6 (“police efforts to sort lawbreakers from bystanders . . . are highly

probative of whether it would be reasonable to conclude that every person arrested violated the

law.”).

159

Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 n.3 (1942) (“The protection of the First

Amendment . . . is not limited to the Blackstonian idea that freedom of the press means only

freedom from restraint prior to publication.”)

160

RonNell Andersen Jones, What the Supreme Court Thinks of the Press and Why It Matters, 66 ALA. L. REV.

253, 255–56 (2014); see also Mary-Rose Papandrea, Protecting the Role of the Press During Times of Crisis,

61 WM. & MARY L. REV. 1159, 1161 (2020) (arguing that “courts have continued to embrace the

largely press-protective interpretation of the First Amendment that arose . . . in the 1960s and

1970s.”).

161

Potter Stewart, “Or of the Press”, 50 HASTINGS L.J. 631, 634 (1975) (“The primary purpose of the

constitutional guarantee of a free press was a similar one: to create a fourth institution outside the

Government as an additional check on the three official branches.”).

162

Houchins v. KQED, 438 U.S. 1, 17 (1978) (Stewart, J., concurring).

163

Id.

164

Id. at 16.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 615

Justice Stewart’s view—which has both its champions

165

and critics

166

—

has been repudiated in the courts as a matter of constitutional rights.

167

However, his argument framing the press as a separate entity from the public

with a distinct role has, directly or not, likely impacted how courts approach

the question of probable cause as it relates to journalists.

The case Sennett v. United States provides a helpful example of Justice

Stewart’s view in action.

168

Laura Sennett, a photojournalist “specializing in

the coverage of demonstrations, protests, and grassroots activism,” was

investigated by police after photographing a demonstration.

169

Sennett,

notably, “did not display any press credentials” or carry any professional

photographic equipment—in fact, she was dressed like the “vandals” she was

documenting. She then argued that her status as a journalist should exempt

her from the criminal statutes she may have broken. The court found that

“common sense flatly precludes” this reasoning—“a person’s status as a

journalist . . . does not immunize the person from the strictures of the

criminal law.”

170

However, the lack of rights that stem from being a journalist “does not

mean that a person’s status or occupation as a journalist is never relevant to

the probable cause calculus,” according to the court.

171

Rather, “the fact

that a person is a photojournalist who records demonstrations” should

always be considered and—in certain cases—may be evidence that

“precludes a probable cause finding.”

172

This distinction between

165

Floyd Abrams, The Press Is Different: Reflections on Justice Stewart and the Autonomous Press, 7 HOFSTRA

L. REV. 563, 564 (1979) (arguing that “the press is ‘different’ from ‘everyone’; that it is, in a variety

of circumstances, entitled to constitutional treatment distinct from that generally afforded those

who exercise their freedom of expression; and that the nature of the treatment should largely be as

urged in the provocative articulations of Justice Potter Stewart.”).

166

Eugene Volokh, Freedom for the Press As an Industry, or for the Press As A Technology? From the Framing to

Today, 160 U. PA. L. REV. 459, 464 (2012) (arguing for a “press-as-technology reading” of the First

Amendment, “under which all users of mass communications technologies have the same freedom

of the press.”).

167

See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (noting that “generally applicable

laws do not offend the First Amendment simply because their enforcement against the press has

incidental effects on its ability to gather and report the news.”); Citizens United, 558 U.S. 310, 352

(“We have consistently rejected the proposition that the institutional press has any constitutional

privilege beyond that of other speakers.”)

168

Sennett v. United States, 667 F.3d 531 (4th Cir. 2012). Although Sennett’s case concerned her

Privacy Protection Act rights, the probable cause reasoning is still relevant to this paper.

169

Sennett v. United States, 778 F. Supp. 2d 655, 657 (E.D. Va. 2011), aff’d, 667 F.3d 531 (4th Cir.

2012).

170

Id. at 666.

171

Id. at 666 n.21.

172

Id.

616 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

constitutional rights and what is reasonable to expect for a probable cause

determination is how many courts have approached the issue of journalist

arrests at a protest.

Contemporary constitutional law establishes that the press does not

possess any rights of access distinct from the general public.

173

Setting aside

for purposes of this paper whether or not this is the correct interpretation of

the First Amendment,

174

it would not be an effective argument for journalists

to claim an innate right to go where protestors or the general public cannot.

It is true, however, that journalists and protestors are distinct groups who

draw on different rights when engaging in protected activity.

175

The George

Floyd protests in 2020—and the court decisions that followed—highlighted

the split between the two groups. For instance, in Abay v. City of Denver, the

court specified that officers’ weapons and tactics impacted not only

protestors’ ability to demonstrate peacefully, but also “the media’s ability to

document the demonstration.”

176

The Abay court also found it is “clearly in

the public interest” to protect both of these separate and distinct rights.

177

More specifically, protestors draw upon the First Amendment to make

their voices heard. In Denver, for example, protestors exercised “the

constitutional right of the public to speak against widespread injustice,”

178

while those who marched in Seattle “were engaged in the constitutional right

to protest police brutality.”

179

As a practical matter, the press do not protest.

Not only is this against longstanding journalistic standards,

180

but it is also

173

See, e.g., Branzburg, 408 U.S. at 684–85 (“Newsmen have no constitutional right of access to the

scenes of crime or disaster when the general public is excluded.”); BH Media Grp., Inc. v. Clarke,

466 F. Supp. 3d 553, 660 (E.D. Va. 2020) (“[T]he First Amendment’s protection of freedom of the

press has traditionally focused on the right of the press to publish information without government

restraint, rather than on the acquisition of the information in the first place.”)

174

See, e.g., Sonja R. West, Favoring the Press, 106 Cal. L. Rev. 91, 95 (2018) (claiming “the text, history,

and spirit of the First Amendment’s Press Clause” allows the government to “treat press speakers

differently”)

175

De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937) (“The right of peaceable assembly is a right

cognate to those of free speech and free press and is equally fundamental.”)

176

Abay, 445 F. Supp. 3d at 1293

177

Id.

178

Id. at 1294

179

Black Lives Matter Seattle-King County. v. City of Seattle, Seattle Police Department, 466 F. Supp.

3d 1206, 1213 (W.D. Wash. 2020).

180

See, e.g., N.Y. TIMES, Ethical Journalism Handbook, https://www.nytimes.com/editorial-

standards/ethical-journalism.html [https://perma.cc/M8TT-PRUH] (last visited Jan. 20, 2022)

(“Staff members may not march or rally in support of public causes or movements”).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 617

documented in federal court rulings following protests.

181

Courts repeatedly

stress that it is reasonable for police to recognize this distinction when

determining probable cause and arresting individuals present at a protest. In

many cases, a reporter’s status as a member of the press makes it

unreasonable to arrest them and may preclude a finding of probable cause.

In Landers v. City of New York, for example, the court was “skeptical” that a

reporter wearing a visible press credential while covering a Black Lives

Matter demonstration could “properly [be] considered a participant.”

182

Similarly, Index Newspapers highlights “the constitutionally protected

newsgathering, documenting, and observing work of journalists . . . who

peacefully stand or walk on city streets and sidewalks during a protest.”

183

Effectively, it is unreasonable for police officers to link journalists to the

protestors they are covering. “It cannot be seriously contended,” one court

writes, that “covering the march as a journalist . . . makes the observer part

of a ‘unit’ that is parading unlawfully.”

184

As another court notes, when an

officer knows an individual at a protest is a journalist, that officer can’t

reasonably believe the journalist “intended to aid the protesters in some

way.”

185

1. Is there probable cause to arrest a journalist covering a protest?

Not only are members of the press reasonably distinct from protestors

who may be the target of a dispersal order,

186

but journalists carry a

181

See, e.g., Goyette v. City of Minneapolis, No. 20-CV-1302 (WMW/DTS), 2021 WL 5003065, at

*13 (D. Minn. Oct. 28, 2021), superseded sub nom. Goyette v. City of Minneapolis, No. 20-CV-1302

(WMW/DTS), 2022 WL 370161 (D. Minn. Feb. 8, 2022) (“Generally, members of the press are in

proximity to a protest to observe, record, and report about the protest, not to participate in the

assembly.”)(emphasis in original).

182

Landers v. City of New York, No. 16-CV-5176PKCCLP, 2019 WL 1317382, at *8 (E.D.N.Y. Mar.

22, 2019).

183

Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1125 (D. Or. 2020).

184

Dinler v. City of New York, No. 04-CV-7921, 2012 WL 4513352, at *14 (S.D.N.Y. Sept. 30, 2012)

(distinguishing between “photographers and journalists covering the march” and “the marchers

themselves”).

185

Eberhard v. California Highway Patrol, No. 3:14-CV-01910-JD, 2015 WL 6871750, at *5 (N.D.

Cal. Nov. 9, 2015).

186

Berg v. Cty. of Los Angeles, No. 20-CV-7870 DMG (PDX), 2021 WL 4691154, at *12 (C.D. Cal.

May 28, 2021) (noting that “at demonstrations where orders to disperse were given and flouted, the

use of injurious less-lethal force on peaceful protesters, and especially on journalists . . . , is not justified

by a strong government interest”) (emphasis added).

618 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

presumption against violent activity due to their professional status.

187

Courts have found that, because it is reasonable to assume that a person

clearly marked as press is not participating in the protest, they are likely not

contributing to any rioting, violence, or other illegal activity.

Benjamin v. Peterson, a case concerning a journalist’s arrest at the 2008

Republican National Convention, demonstrates how an officer’s initially

reasonable belief that an individual was “part of a rioting crowd” could

become unreasonable when that person identified themselves as a member

of the press.

188

The Benjamin court found that the reasonableness of the arrest

could be called into question because the reporter “declared that he was

‘media’ and was wearing press credentials that were visible to

the arresting officers.”

189

Similarly, the Index Newspapers decisions distinguishes between journalists

and other people in the area of the protest, in a way that implies certain

presumptions for members of the press. The Index Newspapers court stated

that the existence of “some violent offenders” does not give government

agents “carte blanche to attack journalists . . . and infringe their First

Amendment rights.”

190

Furthermore, the court wrote, “The fact that a few

people may have engaged in some unlawful conduct does not outweigh the

important First Amendment rights of journalists.”

191

An individual’s status

as a member of the press signifies that they are not “violent offenders” or

engaged in “unlawful conduct.”

IV. OTHER GROUPS—LEGAL OBSERVERS, CITIZEN JOURNALISTS, AND

PROTEST MEDICS

On its face, the argument for journalists seeking to bring a First

Amendment retaliatory arrest claim under § 1983 seems strong. Members

of the press have a First Amendment right to report under either framing of

the protection, they can show clear injury if arrested, and they have a good

187

See, e.g., Asociacion De Periodistas De Puerto Rico v. Mueller, 680 F.3d 70, 82 (1st Cir. 2012) (“A reasonable

agent could reasonably have believed that some number of non-journalists had entered [an

apartment complex] . . . based in part on intimations and evidence that some members of the crowd

were angry or hostile”).

188

Benjamin v. Peterson, No. 12-CV-220 DWF/SER, 2013 WL 3097271, at *4 (D. Minn. June 18,

2013).

189

Id.

190

Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1143 (D. Or. 2020).

191

Id. at 1155.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 619

argument against a finding of probable cause to escape the Nieves bar (or they

may be able to invoke the case’s exemption).

Journalists, however, are not the only individuals that have recently

drawn attention after facing arrest for potentially protected activity at a

protest. Local governments have also recognized the distinct role that groups

such as legal observers or protest medics play, carving out certain protections

from the police.

192

Additionally, individuals acting as medics and legal

observers have been able to show that their protected speech was chilled as

the result of police action.

193

Following the model articulated above with respect to professional

journalists, there are two questions that need to be answered about these

groups in order to determine whether an individual would be able to bring a

claim for First Amendment retaliatory arrest. One, is their conduct protected

under both readings of the First Amendment right to engage with matters of

public interest? These groups may run into problems if courts look for

expressive conduct. Two, is the potential plaintiff so clearly distinguishable

from a protestor that it would be unreasonable to arrest them? Each group

faces questions about whether their activity is really that distinct from that of

a protestor.

A. Legal observers—protected conduct and probable cause

In the Index Newspaper cases, a series of courts have found that legal

observers share the same First Amendment rights as journalists covering a

protest—like the professional press, these observers are “engaged in

newsgathering, documenting, and recording government conduct.”

194

these courts have fleshed out, the First Amendment protects individuals

observing government conduct under the right of access to information.

195

In a similar case, a court found that legal observers at a protest

“undoubtedly” engage in activity protected by the First Amendment because

the right to “monitor police conduct is a core constitutional right.”

196

192

Black Lives Matter Seattle-King County, 406 F. Supp 3d. at 1211 (where an injunction was amended to

add “certain protections for journalists, medics, and legal observers”).

193

See, e.g., Breathe v. City of Detroit, 484 F. Supp. 3d 511, 518 (E.D. Mich. 2020), order clarified, No. 20-

12363, 2020 WL 8575150 (E.D. Mich. Sept. 16, 2020); Downes-Covington v. Las Vegas Metro. Police

Dep’t, No. 220 Civ. 01790GMNDJA, 2020 WL 7408725, at *7 (D. Nev. Dec. 17, 2020).

194

Index Newspapers, 480 F. Supp. 3d. at 1124.

195

Id.

196

Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-01230-BAS-AHG, 2020

WL 5759752, at *8 (S.D. Cal. Sept. 28, 2020)

620 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

However, when courts frame the First Amendment protection as one

concerned with expressive conduct, observers at a protest may fall short of

being able to assert their rights. As one court has held, observing

demonstrators and police at a protest “is conduct with little or no expressive

content” and, therefore, “is afforded no particular protection by the First

Amendment.”

197

Importantly, many legal observers assert that they attend protests and

demonstrations to “serve as a ‘legal observer,’ but not as a participant.”

198

These lawyers attend protests “for the sole purpose of observation.”

199

Additionally, like members of the professional press, legal observers tend to

visually distinguish themselves when observing a protest. Lawyers associated

with the National Lawyers Guild, for example, wear bright clothing and

badges to identify themselves.

200

Police officers have acknowledged that

these indicia signify that the individual is a legal observer.

201

As noted above,

at least one court has articulated that legal observers are a distinct enough

group to qualify for Nieves’s similarly-situated probable cause exemption.

202

Courts, however, have also not been clear as to whether legal observers

are so distinct from protestors that it should impact a probable cause analysis.

“[T]he goals, rights and obligations of legal observers do not always overlap

with those who are protesting,” although they may sometimes.

203

While

some courts have found that “the roles of a legal observer and a protestor are

distinct,”

204

drawing on different First Amendment protections, other courts

have found that it’s not enough for a lawyer to allege to attend a protest “in

the capacity of an observer . . . as observation and participation are not

mutually exclusive.”

205

197

Pesola v. City of New York, No. 15-CV-1917 (PKC)(SN), 2016 WL 1267797, at *11 (S.D.N.Y.

Mar. 30, 2016).

198

Dubner v. City & Cty. of San Francisco, 266 F.3d 959, 962 (9th Cir. 2001).

199

Downes-Covington v. Las Vegas Metro. Police Dep’t, No. 220-CV-01790GMNDJA, 2020 WL

7408725, at *2 (D. Nev. Dec. 17, 2020).

200

Collins v. City of New York, 295 F. Supp. 3d 350, 359 (S.D.N.Y. 2018).

201

Id.

202

Cervantes v. San Diego Police Chief Shelley Zimmerman, No. 17-CV-01230-BAS-AHG, 2020

WL 5759752, at *9 (S.D. Cal. Sept. 28, 2020).

203

Chua v. City of Los Angeles, No. LA CV16-00237, 2017 WL 10776036, at *14 (C.D. Cal. May

25, 2017).

204

Id. at *9.

205

People v. Cohen, 800 N.Y.S.2d 352, 2005 WL 293510, at *4 (N.Y. Crim. Ct. Feb. 7, 2005).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 621

B. Citizen journalists—protected conduct and probable cause

The rights of a citizen journalist at a protest—basically, any individual

present who chooses to record or watch—seem to turn explicitly on how

courts define that First Amendment activity. Crucially for claiming

protection under an expressive conduct framework, courts have found that

the mantle of “citizen journalist” does not imply the individual would

disseminate the information, in the same way a journalist likely would. In

Pluma v. City of New York, for example, a self-described “’citizen journalist’”

brought a First Amendment retaliatory arrest claim after he was harmed

while taking photos and video of police action at an Occupy Wall Street

gathering.

206

Noting that the plaintiff went to Zuccotti Park “with hopeful

reflection upon the efforts of Occupy Wall Street,” the court found that his

filming was only potentially expressive.

207

Other courts, however, have recognized that the First Amendment

protects any citizen filming police activity and misconduct, linking this to the

press’ “vitally important role in holding the government accountable.”

208

Courts have also recognized “the First Amendment rights of the audience”

observing a protest, because such bystanders—regardless if they even invoke

the title of “citizen journalist”—have a “primary interest” in access to

“readily available” information.

209

In MacNamara v. City of New York, for

example, the court found that the First Amendment “protects and promotes”

bystanders at a demonstration, such as a man riding his bike home from a

play who stopped to observe the crowd at a political protest and was

subsequently arrested by police in a mass arrest.

210

In some cases, courts have linked “citizen journalists” to other protestors,

while in others courts have evoked the language around the rights of

“newsmen.” For example, in Cobarobio v. Midland County, a line of cases about

a self-described “citizen journalist” who was arrested while photographing

the site of a deadly train crash, courts appeared to take his claim at face value

and framed the allegations against police as a matter of the “First

206

Pluma v. City of New York, No. 13 Civ. 2017 (LAP), 2015 WL 1623828, at *1 (S.D.N.Y. Mar. 31,

2015).

207

Id. at *7.

208

Index Newspapers v. U.S. Marshals Serv., 977 F.3d 817, 831 (9th Cir. 2020).

209

MacNamara v. City of New York, 275 F.R.D. 125, 141 (S.D.N.Y. 2011).

210

Id. at 133–34, 141 (“Although [Randall] Steketee explained that he was not participating in any

protest or demonstration, he was arrested, handcuffed, and transported to Pier 57, where he was

detained for approximately 33 hours.”).

622 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

Amendment right of the press” (although one court did compare the plaintiff

to “real journalists”).

211

On the other hand, recording protests events on a cellphone can be

someone’s “chosen form of protest.”

212

In Sullivan v. Metropolitan Transit

Authority Police Department, the court situated the plaintiff—a “citizen

journalist” who specifically went to the site of an Occupy Wall Street protest

to film the demonstration—as one of the many protestors present at the

event.

213

When establishing a First Amendment retaliation claim, the

plaintiff’s “self-described status as a ‘citizen journalist,’ rather than an

ordinary citizen at the event, is irrelevant to the legal analysis.”

214

This framing could have broader repercussions for these “citizen

journalists.” As one later case described the details of Sullivan, the “plaintiff

was one among a number of similarly situated protestors filming events and

there was no evidence that the police otherwise arrested protestors

indiscriminately.”

215

This type of analysis would likely preclude any “citizen

journalist” from qualifying for the Nieves exemption to the probable cause

requirement.

216

C. Protest medics—protected conduct and probable cause

Courts have consistently rejected arguments that organized medics

appearing at protests invoke any First Amendment protections distinct from

protestors. In Marom v. City of New York, for example, the court found that it

was reasonable to infer that a “volunteer street medic” at an Occupy Wall

Street protest was present “with the intention of supporting the OWS

movement and its political message.”

217

The court found it plausible that the

211

Cobarobio v. Midland County, No. 13-CV-00111, 2015 WL 13608102, at *24 n.8, *26 (W.D. Tex.

Jan. 7, 2015), aff’d, 695 Fed.Appx. 88 (5th Cir. 2017).

212

Day v. City of Baton Rouge, No. 17-328-EWD, 2020 U.S. Dist. LEXIS 222317, at *6 (M.D. La.

Nov. 30, 2020). Plaintiff’s other forms of protest included his presence at the protest and “talking

sh*t” to police. Id.

213

Sullivan v. Metro. Transit Auth. Police Dep’t, No. 13 Civ. 7677 (NRB), 2017 WL 4326058, at *2

(S.D.N.Y. Sept. 13, 2017).

214

Id. at *8 n.9.

215

Abujayyab v. City of New York, No. 15 Civ. 10080, 2018 WL 3978122, at *12 (S.D.N.Y. Aug. 20,

2018).

216

But see Day, 2020 U.S. Dist. LEXIS 222317, at *44–45 (finding that a case where a plaintiff was

arrested while filming police could “fit the exception to the no-probable-cause requirement

announced in Nieves” because “[a] reasonable jury could conclude that the only difference between

Plaintiff and the protestors who were not arrested is that Plaintiff was directing his protected speech

at the officers, rather than just present at the protest.”).

217

Marom v. City of New York, No. 15-CV-2017, 2016 WL 916424, at *2, *10 (S.D.N.Y. Mar. 7,

2016), on reconsideration in part, No. 15-CV-2017, 2016 WL 5900217 (S.D.N.Y. July 29, 2016).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 623

medic, one of the plaintiffs in the case, “intended to convey a particularized

message of political support for OWS” by physically associating with other

people involved with the movement—even if they “were not shouting or

holding signs.”

218

Similarly, in Wise v. City of Portland, the court rejected a group of protest

medics’ “novel position” that “rendering medical aid to support and advance

a protest is itself a form of constitutionally protected expression.’”

219

Instead,

the court found that protest medics, in short, protest, and therefore do not

have “unique recognition under the First Amendment beyond that afforded

any individual who attends a protest.”

220

The court in Wise also rejected practical arguments put forth by the

plaintiffs to charge law enforcement with distinguishing between medics and

protestors. The judge emphasized that protest medics “lack a distinct

uniform, instead identifying themselves primarily with crosses taped or

painted onto ordinary clothing.”

221

Additionally, the court noted that as part

of the medics’ role at protests, they will “enmesh themselves with other

protesters” to provide aid or may even “deliberately stand in the spaces

between law enforcement and the protesters.”

222

Because of these

considerations, “protest medics’ actions and appearance would not obviously

distinguish them from a diverse crowd of protesters.”

223

Notably, the protest medics bringing the case in Wise were from Portland,

where other federal courts have established and upheld requirements for law

enforcement to exempt journalists and legal observers from the dispersal

orders in the city. Here, however, the relief being sought would create “an

unworkable distinction between the ordinary protestor, who is subject to

dispersal orders, and the protest medics, who are not.”

224

218

Id. at *10.

219

Wise v. City of Portland, 483 F. Supp. 3d 956, 967 (D. Or. 2020) (quoting the Electronic Case File).

220

Id.

221

Id.

222

Id. at 960.

223

Id. at 972.

224

Id. at 971; see also id. at 967–68 (“This lack of uniformity cuts against the proposition that

protest medics are readily identifiable, especially when considering the chaotic situations where

officers must distinguish between protest medics and other protesters through split-second

judgments.”).

624 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

V. THE ‘FLOYD CASELAW’ AND FUTURE FIRST AMENDMENT TRENDS

Dozens of cases now make up the “Floyd Caselaw,” and the group is

growing every day. Underlying many of these decisions is the unfortunate

reality of future demonstrations against police actions and the inevitability

that protestors—as well as journalists—will once again be face to face with

officers.

225

As one court noted, a year and a half after George Floyd’s

murder, “the likelihood of demonstrations and protests persists” and

therefore “the threat of imminent future interactions between [police] and

members of the press persists.”

226

Two trends emerging from these decisions signal a broadening

acceptance of judicially-created press rights distinct from the general public.

First, judges have recognized the blatant unconstitutionality of police

targeting journalists in a series of municipality-focused Monell claims.

Second, courts across the country have created or enshrined press

exemptions from otherwise-enforceable dispersal orders through judicially-

imposed injunctive orders. Both of these sets of cases seem to acknowledge

the impact of widespread attacks on the press in the summer of 2020 and

likely foreshadow a new judicial reality where law enforcement is on notice

that officers cannot go after members of the press for doing their jobs.

A. ‘Floyd Caselaw’ Monell claims put cities on notice

In addition to bringing § 1983 claims against individual officers, plaintiffs

can also seek to vindicate their First Amendment rights through a suit directly

against the city, under what’s become known as a Monell claim. Several of

the “Floyd Caselaw” decisions have allowed these claims against

municipalities to go forward, often tying in contemporary coverage of the

widespread attacks on the press as evidence that a certain police department

should be “on notice” for requiring proper press interactions.

225

See, e.g., Alsaada v. City of Columbus, No. 2:20-CV-3431, 2021 WL 1725554, at *32 (S.D. Ohio

Apr. 30, 2021), modified sub nom. Alsaada v. City of Columbus, Ohio, No. 2:20-CV-3431, 2021 WL

3375834 (S.D. Ohio June 25, 2021) (“As long [as] police killings are met with public outrage and

protest … there remains a reasonable likelihood that Plaintiffs will face the same challenged conduct

again”); Samaha v. City of Minneapolis, 525 F. Supp. 3d 933, 945–46 (D. Minn. 2021) (“Although

Plaintiffs have not pleaded when they will again participate in protests in Minneapolis, Plaintiffs are

not required to divine the date when the next controversy will spark widespread outrage in this

community”); Gaffett v. City of Oakland, No. 21-CV-02881, 2021 WL 4503456, at *4 (N.D. Cal.

Oct. 1, 2021) (noting that police brutality cases “are all too common” and “there is a high chance

there will be similar incidents to protest”).

226

Goyette v. City of Minneapolis, No. 20-CV-1302, 2021 WL 5003065, at *9 (D. Minn. Oct. 28,

2021).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 625

The Supreme Court has found that a municipality can be liable for a

“deliberate indifference” failure-to-train Monell claim when city is on “actual

or constructive notice that a particular omission in their training program

causes city employees to violate citizens’ constitutional rights” and keeps the

program without remedying the issue.

227

“The city’s ‘policy of inaction’ in

light of notice that its program will cause constitutional violations ‘is the

functional equivalent of a decision by the city itself to violate the

Constitution.’”

228

In practice, as at least two circuits have elaborated, this can be proven by

meeting a set of distinct factors. Drawing on the Supreme Court’s guidance,

the Second Circuit and Third Circuit follow a three-part test as articulated

in Carter v. City of Philadelphia. In order for a plaintiff to allege “deliberate

indifference” and demonstrate a municipality’s failure to train or supervise

they need to prove that “(1) municipal policymakers know that employees

will confront a particular situation; (2) the situation involves a difficult choice

or a history of employees mishandling; and (3) the wrong choice by an

employee will frequently cause deprivation of constitutional rights.”

229

This is the test the court used in Martínez v. City of Asbury Park, finding that

a journalist’s—Gustavo Martínez, mentioned above—failure-to-train

allegations met each criterion. For part one, the court found it plausible that

the municipality “knew that their officers would ‘confront a particular

situation’—namely, journalists or reporters covering a protest.”

230

Additionally, this situation would involve “a difficult task—namely, how to

identify and interact with reporters during and after a protest.”

231

And,

finally, the court gave credence to Martínez’ allegation that “failures to

navigate interactions with reporters properly could ‘frequently cause

deprivation of constitutional rights.’”

232

Thus, Martínez was able to move

forward with his claim against Asbury Park.

An examination of the court’s reasoning reveals a series of findings that

may signal broader acceptance of standalone press rights. The court cited

several pertinent facts in evaluating the first two criteria, finding that the city

reasonably should have known that their officers would confront reporters

227

Connick v. Thompson, 563 U.S. 51, 61 (2011).

228

Id. at 61–62.

229

Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999) (citing Walker v. City of New

York, 974 F.2d 293, 297–98 (2d Cir. 1992)).

230

Martínez v. City of Asbury Park, No. 20-8710, 2021 U.S. Dist. LEXIS 43944, at *16 (D.N.J. Mar.

5, 2021).

231

Id. at *16–17.

232

Id. at *17.

626 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

covering a protest—effectively, that they were “on notice” of this particular

situation—and the decision of how to handle these journalists would require

“more than the application of common sense.”

233

Of note was that Martínez

had a press pass from the New Jersey Police Press Credential Program, which

“ensures that law enforcement in New Jersey can identify journalists and

tailor their interactions with them,” and that Asbury Park’s emergency

curfew in place that night exempted “credentialed members of the media.”

234

These facts could likely apply to most journalists arrested while covering

protests. As described above, press passes and curfew exemptions are

standard practice for the professional press. This creates a situation where

any municipality should be aware police officers will encounter journalists at

a protest and that these encounters require special considerations. Similarly,

regardless of whether the specific circuit has outlined a broad right to record

or otherwise engage with matters of public interest, journalists’ conduct is

uniformly acknowledged to be protected by the First Amendment. Members

of the press are well situated to show that an unconstitutional arrest is

emblematic of a broader unlawful policy or failure-to-train, especially when

they have a press pass and are exempted from general regulations.

235

The Martínez court also highlighted something potentially less obvious in

finding the journalist could move forward with his claim, which could be a

potential harbinger for similar cases. In finding the police department should

have been on notice, the court noted that “[o]ther journalists were ostensibly

unlawfully arrested at protests around the country in summer 2020.”

236

The

widespread coverage of this unconstitutional practice was evidently enough

to make municipalities aware of the need to create a policy response. This

could perhaps be the silver lining of the scores of targeted attacks and

unlawful arrests that journalists faced while covering protests in 2020—it put

cities and police departments across the country on notice.

This language in Martínez recalls similar reasoning in other cases allowing

Monell claims following the police response to the protests in 2020. Linda

Tirado’s lawsuit against the Minneapolis Police Department, for example,

was able to go forward in part because the city allegedly was aware of

unlawful targeting of journalists through “broad reporting by news outlets”

233

Id. (quoting Walker, 974 F.2d at 297).

234

Id. at *16; see also id. at *17 (“The existence of the New Jersey Police Press Credential Program

suggests that fulfilling those obligations calls for more than common sense.”).

235

See, e.g., Tirado v. City of Minneapolis, 521 F. Supp. 3d 833, 842 (D. Minn. 2021) (finding that

“disparaging comments made by [police] to two journalists about their press passes and exemption

from the curfew” was evidence that pointed to a “pattern of misconduct.”).

236

Martínez, 2021 U.S. Dist. LEXIS 43944, at *16.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 627

and “social media monitoring efforts.”

237

This was sufficient to allege that

the city knew about the unofficial unconstitutional policy, and stayed the

course. Similarly, a court allowed a Monell suit to proceed against the

municipal government of Louisville, Kentucky—accusing the police

department of using aggressive force against journalists reporting on local

protests—because the city was on notice “of a pattern of constitutional

violations” based on “local and national news articles” on officers’ tactics.

238

In all three of the above cases, the courts acknowledged that media

reporting from the time of the protests themselves could play a substantive

role in establishing Monell claims against a city. Each decision allowing the

Monell claims to go forward credited contemporaneous accounts of police

misconduct—locally in Minneapolis and Louisville, and nationally in Asbury

Park—as putting government officials on notice that this was something

necessary to address. This stands in contrast to another federal court decision

from a few years before, where a judge found that a police department would

not have the knowledge necessary to meet a deliberate indifference standard

for not addressing policies for filming police activity just based on a few

cases—one national and two within the circuit—involving individuals

filming the police.

239

In Basler v. Barron—a 2017 case where a plaintiff sued Harris County,

Texas which includes Houston—the court found that even assuming the

county had knowledge of these past cases, it was too much of a leap to claim

that “mere knowledge of these events gives rise to a conclusion that Harris

County was deliberately indifferent and consciously disregarded any risk that

there might be retaliation for filming.”

240

In essence, these past incidents were not enough to establish that the

police department would have been on notice for a failure to train claim. It

seems likely, however, that following the high-profile attacks on members of

the media during 2020’s protests, this case may have come to a different

conclusion if decided now. Journalists are well positioned to argue—and

courts should find—that any municipality in the country is now on notice.

237

Tirado, 521 F. Supp. 3d at 843.

238

Scott v. Louisville/Jefferson Cnty. Metro Gov’t, 503 F. Supp. 3d. 532, 533–34 (W.D. Ky. 2020).

239

See Basler v. Barron, No. CV H-15-2254, 2017 WL 477573, at *11 (S.D. Tex. Feb. 6, 2017)

(concluding that “Basler failed to provide the evidence required to establish failure to train was a

policy of the department.”).

240

Id.; see also Martinez v. City of Santa Rosa, 499 F. Supp. 3d 748, 749 (N.D. Cal. 2020) (dismissing

a municipal liability claim for First Amendment violations because “generic, boilerplate terms”

were insufficient “to hold city liable under § 1983 for alleged retaliation by individual officers against

protestors based on their speech or filming”)

628 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

B. “Floyd Caselaw” injunctive relief establishes press privileges

Someday, a court may need to decide whether the First Amendment protects

journalists and authorized legal observers, as distinct from the public

generally, from having to comply with an otherwise lawful order to disperse

from city streets when journalists and legal observers seek to observe,

document, and report the conduct of law enforcement personnel; but today

is not that day.

241

Although this theoretically remains an open question, it is axiomatic

within modern First Amendment jurisprudence that members of the press do

not receive special rights or privileges due to their profession. One of the

most intriguing legal determinations to emerge from the 2020

demonstrations is an unusual line of cases stemming from protests in

Portland. The cases appear to have established a dispersal order exemption

for journalists as a matter of judge-made law.

242

As part of a temporary

restraining order (TRO), the first of these cases—Woodstock v. City of

Portland—exempts journalists from dispersal orders and prevents local law

enforcement from “arresting, threatening to arrest, or using physical force

directed against any person whom they know or reasonably should know is

a Journalist.”

243

In essence, the court created a dispersal order carve out for

members of the press.

Although this ruling was expanded to include protections from federal

law enforcement in Index Newspapers

244

and formalized in an agreement with

the city,

245

granting these rights to journalists flies in the face of established

media law norms. The exemption for journalists in Portland “seems to run

afoul of the principle that the press does not have special status from other

speakers when it comes to what they can say and their access to spaces,”

241

Index Newspapers v. City of Portland, 480 F. Supp. 3d 1120, 1126 (D. Or. 2020).

242

Although the injunction underlying this exemption remains in place, a district court judge signaled

in January 2022 that the injunction could be dissolved if the Ninth Circuit remands the case, citing

“the significantly reduced number and size of protests in Portland” and “a significantly reduced

federal response involving the use of force.” Index Newspapers LLC v. City of Portland, No. 3:20-

CV-1035-SI, 2022 WL 72124, at *6 (D. Or. Jan. 7, 2022)

243

Woodstock v. City of Portland, No. 3:20 Civ. 1035-SI, 2020 WL 3621179, at *4 (D. Or. July 2,

2020) (establishing that journalists “shall not be required to disperse following the issuance of an

order to disperse, and . . . shall not be subject to arrest for not dispersing following the issuance of

an order to disperse.”).

244

Index Newspapers, 480 F. Supp. 3d at 1120.

245

Id. at 1157.

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 629

according to Florida International University law professor Howard

Wasserman.

246

Rather than standing out as an oddity, however, the Portland cases now

stand as the first of several federal court injunctive orders granting the press

special protections against police action. To understand how much this

thinking has changed in less than a year, it’s worthwhile to examine two

rulings from Goyette v. City of Minneapolis—one released in June 2020 and one

released in April 2021. In the June decision, the court found that a TRO

that would enjoin police officers from arresting and threatening members of

the news media was unnecessary under the circumstances.

247

While there

were “extensive allegations of egregious conduct by law enforcement directed

at members of the news media,” the court found that no facts “plausibly

demonstrate that such conduct is likely to recur imminently.”

248

The April decision came out quite differently, as the court granted a

TRO exempting journalists from general dispersal orders and forbidding

police from using force against members of the press.

249

Notably, the court

rejected the city’s argument that journalists have “no right to ‘remain in an

active dispersal area,’” instead finding that a dispersal order that includes

journalists is not “narrowly tailored.”

250

In contrast to the findings of the June 2020 decision, the harm journalists

may face at the hands of police officers “is no longer speculative or a mere

possibility”—“Rather, the protests have continued and the harm exists.”

251

The court cited “the events that have occurred over the last year” as evidence

for the TRO, seemingly taking the likelihood of constitutional violations as a

given.

252

The “demonstrations and protests likely will continue” and

246

Howard Wasserman, (Update) Grab Your Fedora, We Are All Journalists Now and Other Thoughts on the

Portland TRO, PRAWFSBLAWG (July 24, 2020, 8:26 AM),

https://prawfsblawg.blogs.com/prawfsblawg/2020/07/grab-your-fedora-we-are-all-journalists-

now-and-other-thoughts-on-the-portland-tro.html#more [https://perma.cc/T7BG-CHKK].

247

Goyette v. City of Minneapolis, No. 20 Civ. 1302, 2020 WL 3056705, at *19 (D. Minn. June 9,

2020).

248

Id. at *3–4.

249

See Goyette, 338 F.R.D. at 121 (enjoining the Minneapolis police department from “arresting,

threatening to arrest, or using physical force . . . directed against any person whom they know or

reasonably should know is a Journalist . . . unless the State Defendants have probable cause to believe

that such individual has committed a crime”).

250

Id. at 109, 116.

251

Id. at 119.

252

Id.

630 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

journalists “cannot document these ongoing events of public importance”

without the court intervening in police action.

253

These decisions following the George Floyd protests make it clearer than

ever that certain words, actions, and attire signify that an individual is a

member of the press. The Portland TRO lists what qualifies as being an

“indicia of being a Journalist,” which ostensibly creates a badge of protection

against police action. The list in Woodstock includes, while not limiting what

could count as an indicia, “visual identification as a member of the press,

such as by carrying a professional or authorized press pass or wearing a

professional or authorized press badge or distinctive clothing that identifies

the wearer as a member of the press.”

254

Similarly, Goyette finds that indicia

that establishes a journalist’s “visual identification” includes a press

credential—such as a pass or badge—as well as “distinctive clothing that

identifies the wearer as a member of the press.”

255

Another recent TRO

issued by a federal court, while not expressly granting dispersal order

exemptions for these groups, takes this process one step further. In Alsaada v.

City of Columbus, the court ordered police officers to “recognize that

individuals legitimately displaying ‘press,’ ‘media,’ ‘reporter,’ ‘paramedic,’

‘medic,’ ‘legal observer’ . . . are permitted to be present in a position enabling

them to record at protests and/or to intervene to assist individuals who

appear to have been injured.”

256

The court also granted protections to

citizen journalists, ruling that “all individuals, regardless of their occupation

or nonviolent activity, are permitted to record at protests or whenever any

police officer interacts with the public.”

257

There is a strong argument that these types of arrangements work. As

the court noted in Index Newspapers, where it applied a similar TRO to federal

law enforcement, the fact that the City of Portland did not ask to modify the

original restrictions when adopting it as a primarily injunction “is compelling

evidence that exempting journalists . . . is workable.”

258

Additionally, a later

253

Id. The judicial order at the heart of the Goyette cases has subsequently been converted to a

preliminary injunction—see Goyette v. City of Minneapolis, No. 20-CV-1302 (WMW/DTS), 2021

WL 5003065 (D. Minn. Oct. 28, 2021)—and enshrined as a monitored injunction under a

settlement agreement—see Goyette v. City of Minneapolis, No. 20-CV-1302 (WMW/DTS), 2022

WL 370161, at *1 (D. Minn. Feb. 8, 2022).

254

Woodstock v. City of Portland, No. 3:20 Civ. 1035-SI, 2020 WL 3621179, at *4 (D. Or. July 2,

2020).

255

Goyette, 338 F.R.D. at 122.

256

Alsaada v. City of Columbus, No. 20 Civ. 3431, 2021 WL 1725554, at *47 (S.D. Ohio Apr. 30,

2021).

257

Id.

258

Index Newspapers v. City of Portland, 480 F. Supp. 3d 1120, 1148 (D. Or. 2020).

April 2022] THE PRESS AND FIRST AMENDMENT RIGHTS 631

decision on the order featured expert testimony establishing that law

enforcement personnel “are able to protect public safety without dispersing

journalists” and “can differentiate press from protesters, even in the heat of

crowd control.”

259

Somewhat ironically, law enforcement may have

inadvertently provided courts with evidence of the efficacy of these

injunctions by targeting journalists. As one court examining the Goyette order

found, “numerous examples of law enforcement officers specifically and

intentionally targeting identifiable members of the press, both verbally and

physically … belies any suggestion that members of the press were somehow

indistinguishable from others.”

260

The TROs that have come out following the Portland decisions

demonstrate that this may be a lasting trend. Citing to these cases, Goyette

outlines a preliminary injunction framework proven to be effective—in

circumstances where police forces were using force and arrest against

journalists, courts “have required members of the press to adequately identify

themselves, refrain from impeding law enforcement activities, and comply

with all laws other than general dispersal orders.”

261

It seems likely courts

will continue to implement similar injunctions, regardless of whether the

privileges granted directly derive from First Amendment principles.

CONCLUSION

Members of the press traditionally occupy an odd role at protests. On

the one hand, journalists are entitled to no different rights than any other

individual, including no special access to newsworthy events. On the other

hand, however, government officials, police officers, and judges all seemed

to recognize that journalists have a distinct role in American society—

therefore, it may be reasonable to give them some leeway while doing their

job.

The protests following George Floyd’s murder in 2020 upended any

protections the press thought they had. While it was not uncommon for

journalists to be arrested at protests, the U.S. had rarely if ever seen the

widespread targeting of clearly marked members of the press—as well as the

259

Id. at 1136.

260

Goyette v. City of Minneapolis, No. 20-CV-1302 (WMW/DTS), 2021 WL 5003065, at *8 (D.

Minn. Oct. 28, 2021), superseded sub nom. Goyette v. City of Minneapolis, No. 20-CV-1302

(WMW/DTS), 2022 WL 370161 (D. Minn. Feb. 8, 2022).

261

Goyette, 338 F.R.D. at 118.

632 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24:2

widespread condemnation of police action by commentators, activists, and

government officials.

These instances of police violence against the press may have pushed the

judiciary to create certain judge-made protections for the press. The implied

notice in recent Monell claims and the willingness of judges to issue

injunctions granting journalists distinct privileges both signal an emerging

recognition of unique press rights, in contrast to traditionally held First

Amendment principles. Courts may not feel limited to offering these

protections solely to the press—rather, legal observers, citizen journalists,

and medics could all be entitled to judicially-enacted carve outs.

Judges should not hesitate to acknowledge the distinct roles of these

groups and enact protections against police retaliation. The “Floyd

Caselaw” is only growing and will hopefully continue to provide decisions

that allow for the safe performance of First Amendment protected activity.

These judicial protections should not stop at the press, but deserve to be

extended to other groups such as legal observers, citizen journalists, and

medics. After all, the world only knows the truth of how George Floyd died

“because citizens standing on a sidewalk exercised their First Amendment

rights and filmed a police officer.”

262

Index Newspapers, 977 F. 3d at 830.