California extends legal protections for journalists covering protests
Originally published in the Fall 2021 issue of California Publisher.
By Jason M. Shepard
As public protests over police misconduct spread throughout the United States after the May 2020 police killing of George Floyd, one of the biggest threats to journalists trying to report the news came from the police.
“We have seen a surge in egregious acts of violence and obstruction made against members of the press across the country and right here at home in the Golden State,” said Sen. Mike McGuire (D-Healdsburg).
Now, thanks to a monumental new law authored by McGuire and signed into law by Gov. Gavin Newsom in October, journalists in California will see significant new legal protections while covering protests and marches after the law takes effect Jan. 1, 2022.
Under current law, journalists covering natural disasters are allowed into emergency areas behind police lines and are exempt from police curfews.
The new law expands this access principle to protests and marches, explicitly allowing journalists access to protest areas that are closed by the police during an emergency. The law prohibits police from interfering with newsgathering and citing journalists for failing to disperse. The law also gives journalists the right to challenge any detention with a supervisor on scene.
The law defines a covered journalist as anyone who is “a duly authorized representative of any news service, online news service, newspaper, or radio or television station or network.”
“This law will provide critical protections for the press as they attend and report on First Amendment events like protests, marches, rallies, and demonstrations,” McGuire said in a statement. “California is leading the way to ensure the freedom of the press and the First Amendment are protected and held to the highest standard.”
Police groups opposed the bill, saying the need for public safety after protests turn violent is different than in natural disasters. They pushed for changes requiring journalists to seek permission to be in closed areas, but the bill’s supporters scuttled those amendments after journalist groups complained the changes could do more harm than good.
Newsom vetoed a similar bill in 2020, reportedly over concerns about the definition of who is covered and that fringe groups could use the law to cause harm in closed areas.
The bill gained momentum again following several high-profile incidents, including one near Echo Park Lake in March 2021 after the Los Angeles Police Department attacked and detained journalists covering a protest over the city’s clearing of a homeless encampment. At least two journalists were shot with rubber bullets and three others were detained, according to reports.
The incidents were among more than 50 recent cases of police actions against journalists documented by a coalition of California journalism advocacy groups organized in support of the new law. They included 27 cases of assaults or injuries, 16 detainments without arrests, and seven arrests with citations.
“During the past two years, working conditions for journalists have steadily deteriorated across the state. While covering protests, many of our newspaper, television, radio, digital, freelance and student media colleagues were arrested, detained or injured by law enforcement,” the coalition wrote in a letter urging Newsom to sign the bill.
The coalition created a slideshow of graphic photos documenting injuries suffered by journalists. The photos included the bloody neck of Adolfo Guzman-Lopez of NPR affiliate KPCC, who was shot with a foam bullet by Long Beach police in May 2020 while covering a Black Lives Matter protest.
Other California cases included the arrest of Josie Huang, a reporter for KPCC and LAist. Los Angeles Sheriff’s deputies attacked and arrested Huang while she covered a small protest that had assembled in September 2020 outside of a hospital as two officers who had been shot in an ambush were being treated inside. The sheriff’s department initially said Huong refused orders and did not identify herself a reporter, but video recorded on her phone of the incident showed otherwise.
“In more than 50 documented instances over a year, clearly identified journalists reported being targeted by law enforcement while covering protests in California. A disproportionate number of those journalists are Black and brown,” Ashanti Blaize-Hopkins, an associate professor of journalism at Santa Monica College and vice president of the Society of Professional Journalists Greater Los Angeles chapter, wrote in an editorial in the Sacramento Bee.
“A free press is essential to a functioning democracy. Journalists are the eyes and ears of the public and must have the freedom to cover civil disturbances without interference. Erosion of press rights results in an uninformed or ill-informed public,” wrote Blaize-Hopkins, a leader of the coalition pushing for the new law.
Nationwide, protests have become the most common place for journalists to be attacked or arrested, according to the U.S. Press Freedom Tracker, a project of more than two dozen press freedom groups.
In 2020, the project identified 400 attacks against journalists and 129 arrests of journalists at protests in the U.S., many of them fueled by the police killing of George Floyd and the broader Black Lives Matter movement.
An analysis by the Reporters Committee for Freedom of the Press documented 89 attacks against journalists by protesters in 2020, and in at least half of them, journalists appeared to be singled out because of their newsgathering role.
But 80 percent of the documented attacks against journalists came from the police. Police attacked journalists using rubber bullets, tear gas, pepper balls, batons and fists. Police also blocked access to public places and detained and arrested journalists for doing their jobs.
“Journalists were impeded or outright prevented from reporting news about one of the most important social movements in recent history,” the report concluded.
Perhaps the highest profile arrest was that of Omar Jimenez, a CNN correspondent who was arrested in Minneapolis, along with his crew, live on CNN while covering the Floyd protests. The Minnesota governor personally apologized for the arrests. (Disclosure: I chair a committee of the Association for Education in Journalism and Mass Communication that gives an annual First Amendment award, and Jimenez was the 2020 recipient).
In most cases where journalists were arrested on scene, charges were ultimately dropped.
In one rare prosecution of a reporter, an Iowa jury in March found Des Moines Register reporter Andrea Sahouri not guilty on two criminal charges of failing to disperse and interference with police.
“Newsgathering is a fundamental part of press freedom. Reporters need to be at protests as the public’s eyes and ears, to conduct interviews, take photos and witness for themselves the actions of protesters and law enforcement,” Des Moines Register Executive Editor Carol Hunter told her newspaper. “If reporters are arrested and hauled away from protests, that denies people the right to know what’s going on in their community.”
At least in California, journalists can breathe a little easier in knowing the law is on their side when they are doing their jobs reporting at protests and marches.
Jason M. Shepard, Ph.D., is professor and chair of the Department of Communications at California State University, Fullerton. His primary research expertise is in media law, and he teaches courses in journalism, and media law, history and ethics. Contact him at firstname.lastname@example.org or Twitter at @jasonmshepard.