Skip to content
Legal Hotline

Police, Protesters, and the Press

Post categories

  1. Newsgathering
This guide helps journalists understand their rights at protests and how to avoid arrest when reporting on these events.
A split graphic with the text "Police, Protestors, and the Press" on the left and symbols for a police badge, fist, and press badge on the right.

Note: This guide was published in 2018 and most recently updated in March 2024.[1] Thanks to RCFP’s Emily Hockett and Grayson Clary for their assistance updating this guide.

Introduction

The United States has seen a wave of mass demonstrations and political protests in recent years. In the summer of 2020, for instance, the death of George Floyd sparked protests across the country, and journalists played a vital role in communicating protesters’ concerns to the government and the public.[2] Yet in the year following Floyd’s death, one of the most dangerous places in the U.S. for a journalist was at a protest.[3] According to the U.S. Press Freedom Tracker, journalists covering protests were subject to an average of 1.6 assaults each day that year, with more than 85% perpetrated by law enforcement.[4] In subsequent years, that number has thankfully decreased.[5]

In the years ahead, journalists will again provide important coverage of demonstrations tied to issues from reproductive freedom to gun rights and beyond. This guide aims to help journalists understand their rights at protests and avoid arrest when reporting on these events. It summarizes the legal landscape and provides strategies and tools to help journalists avoid incidents with police and navigate them successfully should they arise. This guide does not replace the legal advice of an attorney. Journalists with additional questions or in need of assistance finding a lawyer should contact the Reporters Committee’s free Legal Hotline by submitting a request. If journalists need emergency assistance outside normal business hours, they should call our hotline at 1-800-336-4243.

Resource: Download or print a PDF with a condensed version of the Reporters Committee’s tips for covering protests.

 

Overview of the Law

Under the First Amendment, journalists covering protests have the same rights as other members of the public to observe, photograph, and record in public places. That includes the right to be free from arrests or assaults motivated by hostility to their coverage or by a desire to prevent reporting on public demonstrations. In addition to the Constitution’s prohibition on retaliation, even good-faith police orders that limit newsgathering by, for instance, requiring a reporter to move to a different location must be narrowly tailored to a substantial government interest — such as preventing interference with law enforcement duties — and must leave open adequate alternative opportunities to gather the news. Simply being near a protest or other newsworthy event is not a crime; however, journalists can be arrested if police have probable cause to believe a journalist broke a generally applicable law while reporting — for example, by trespassing or disobeying a valid police order to disperse. Some state and local jurisdictions choose to provide protections for newsgathering that complement those First Amendment safeguards by, for instance, expressly exempting journalists from dispersal or curfew orders with which other members of the public must comply. In addition, both the Fourth Amendment and the federal Privacy Protection Act of 1980 offer protections to journalists from having their person and belongings searched or seized.

First Amendment Protections
Freedom of Speech and of the Press

The First Amendment safeguards the right to freedom of speech and the press, which are fundamental liberties “at the foundation of free government.”[6] The government may not use police power or other means to arbitrarily or unnecessarily interfere with these freedoms.[7] In fact, the purpose of these rights was to foster public discussion free of government interference.[8]

            Covering SCOTUS demonstrations

Federal law prohibits demonstrations inside the Supreme Court building or on its grounds.[9] That includes the steps, plaza, lawn, and the promenade surrounding the building.[10] Enforcement of the law is generally strict.[11] However, the sidewalks surrounding the Supreme Court are “public forums” protected by the First Amendment.[12] That means the government can impose reasonable time, place, and manner restrictions on activities there but cannot deny access entirely or prohibit communication.[13]

Protests outside of judges’ homes present more challenging questions. Under federal law, a person who “pickets or parades” outside a courthouse or a residence of a judge “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge” can be found guilty of obstruction of justice.[14] A journalist present for newsgathering purposes would likely lack the requisite intent laid out in the statute. Still, reporters should take extra precautions when covering these protests, especially in the context of contentious issues like gun and reproductive rights. RCFP’s Tips for Covering Protests is a helpful resource to review before a demonstration.

            Right to gather news generally

Freedom of the press includes some protection for the right to collect and disseminate news, but this right is not absolute.[15] General laws that apply to all citizens apply equally to the press, so journalists must stay within the bounds of the law when exercising their First Amendment freedoms.[16] For example, journalists cannot trespass on private property or engage in other unlawful conduct that occurs during a protest under the guise of gathering news.[17] However, police cannot arrest journalists in retaliation for coverage they perceive as critical or to prevent reporting on a public demonstration.[18]

In addition, most courts have recognized that the First Amendment right of access does not permit government officials to deprive certain journalists of access to information made available to others, particularly in retaliation for past news coverage or on the basis of viewpoint.[19] Some courts have held that the government must have “compelling” reasons to justify differential treatment, though others have found a reasonable basis sufficient.[20] The press has no right of special access to information not available to the general public, however,[21] and can be excluded from crime and disaster scenes to the same extent as the general public.[22] That said, because both the press and public have a right to gather information in public places, several courts have held that blanket dispersal orders that leave open no alternative avenue for documenting the law enforcement response to a protest violate the First Amendment.[23] To comply with that principle, a number of jurisdictions have adopted policies exempting individuals that officers know (or should know) are engaged in newsgathering from dispersal or curfew orders.[24]

            Right to record

The First Amendment generally protects filming, audio recording, and photography of government officials engaged in their duties in a public place, including police officers performing their responsibilities (during a protest or otherwise). Although the Supreme Court has not addressed the issue, seven federal appellate courts have recognized this constitutional right to record, reflecting a growing consensus on the matter.[25] Reflecting the dramatic increase in citizen journalism, these cases have also recognized that the right to gather news and access information, which form the basis for the right to record, applies to private citizens as well as journalists.[26]

Like other First Amendment rights, however, courts have held that the right to record may be subject to reasonable time, place, and manner restrictions.[27] As one court put it, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law-enforcement needs.” How far from an event officers may require the press and public to stay back remains an area of substantial controversy. For instance, Indiana recently enacted a law that prohibits approaching within 25-feet of a law enforcement officer after being told to stay back.[28] In a decision currently on appeal as of this writing, a federal court rejected a facial challenge to the statute brought by an individual against whom the law was enforced.[29] The statute is also currently being challenged by a group of news organizations and free press advocacy groups in a separate proceeding that remains pending.[30]

In addition, it is illegal in most states to surreptitiously record a private conversation without the consent of at least one party or, in some states, all parties. (Two U.S. courts of appeal have recently held that state laws prohibiting surreptitious recording of public, in-person conversations violate the First Amendment or may do so under certain circumstances, but the law in this area continues to develop.)[31] For more information about each state’s laws about recording, see the Reporter’s Recording Guide. Journalists recording protest activities can reduce their risk of arrest by identifying themselves as press, not interfering with law enforcement, and recording from a safe distance, if possible.[32]

            Civil rights lawsuits

If police officers prevent journalists from recording without a lawful basis or arrest or attack them for doing so, journalists may be able to bring a civil rights action against the officers pursuant to 42 U.S.C. § 1983 under a theory that the officer violated the plaintiff’s constitutional rights under the First[33] or Fourth[34] Amendment. Whether a police officer has qualified immunity against such a claim depends on whether the officer’s conduct “violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.”[35]

When officers arrest or assault a journalist simply for reporting the news, and that journalist is complying with the law, this clearly violates the First Amendment, and the journalist would have a valid claim under § 1983.[36] Whether a right to record will be found to be “clearly established” depends on the particular circumstances and jurisdiction.[37] That said, the clear trend in the law is that a court will find a right to record to be “clearly established” even if the relevant federal circuit court has yet to do so. No circuit has held that a right to record does not exist.[38]

Photo of NYPD officer confronting AP photographer during protests in New York CityA police officer shouts at Associated Press videojournalist Robert Bumsted, Tuesday, June 2, 2020, in New York. (AP Photo/Wong Maye-E)

Fourth Amendment Protections

The Fourth Amendment protects the right of the people to be secure against unreasonable searches and seizures. Journalists are entitled to this qualified right of personal security on city streets during protests.[39] In fact, the Supreme Court has held that Fourth Amendment limitations must be “scrupulously observed” in cases involving information protected by the First Amendment.[40] The Fourth Amendment likewise provides that law enforcement cannot predicate a search or seizure based on someone’s “mere propinquity to others independently suspected of criminal activity,”[41] meaning that police cannot arrest journalists merely for being close by while demonstrators engage in illegal activity. Journalists often include Fourth Amendment claims in civil actions against law enforcement for lack of probable cause to arrest and unlawful seizure of recording equipment.[42]

Seizure

The Supreme Court has described the seizure of property as a “meaningful interference with an individual’s possessory interest.”[43] Seizure can also be of an individual’s person, as when law enforcement restrains one’s ability to walk away through a command, arrest, or the use of force. There is some uncertainty on the question of whether excessive force used to disperse rather than restrain is an unreasonable seizure.[44] But if law enforcement objectively manifests an intent to restrain a journalist, then they are seized under the Fourth Amendment.[45]

Officers must have probable cause to believe an individual is committing a crime before making an arrest. However, in Terry v. Ohio, the Supreme Court held that law enforcement could briefly detain and “frisk” an individual for weapons, consistent with the Fourth Amendment, so long as the officer has a “reasonable suspicion” that the individual is armed and dangerous.[46] This “reasonable suspicion” standard requires less than the “fair probability that contraband or evidence of a crime will be found”[47] (the standard of probable cause required to arrest) but more than an “inchoate and unparticularized suspicion or ‘hunch.’”[48] The stop must be justified at the time it occurs, reasonably related in scope to the circumstances that justified the stop, and conducted using the least intrusive means reasonably available.[49] Officers can consider contextual characteristics like presence in a “high crime area” in assessing reasonable suspicion,[50] though by itself an individual’s mere presence in an area of suspected criminal activity is insufficient.[51] During Terry stops, law enforcement can ask people to identify themselves, though whether they are obligated to respond depends on the state they are in.[52]

At protests, law enforcement cannot stop and frisk protesters or journalists without an objective, reasonable belief that they are armed and dangerous. If journalists are dispersed in a crowd of protesters and the protest turns violent, however, the risk of a Terry stop (or arrest, for that matter) is heightened. During a Terry stop, law enforcement may temporarily seize journalists’ equipment, though such a seizure typically requires an arrest supported by probable cause. Journalists should always clearly identify their purpose at a protest to law enforcement and should wear press credentials, if possible, in order to tip the reasonable suspicion or probable cause calculation in their favor.[53]

Search

The Supreme Court uses a two-prong test established in Katz v. United States to determine the reasonableness of a search under the Fourth Amendment.[54] The test considers, first, whether a person had an actual, subjective expectation of privacy and, second, whether the expectation of privacy was one that society is prepared to recognize as reasonable.[55] Reasonableness is the “ultimate touchstone”[56] of the Fourth Amendment and is context-specific.[57] Although the Fourth Amendment generally requires a court-issued warrant before the government can search a person or his or her property, the Supreme Court has recognized certain exceptions where the intrusion of the search on a person’s privacy is outweighed by the government’s interests.[58] Common exceptions to the warrant requirement include voluntary consent,[59] “exigent” or urgent circumstances,[60] and searches conducted during (or “incident to”) an arrest.[61]

Due to the frequency of arrests at protests, the search-incident-to-arrest exception is particularly important for journalists to be aware of.[62] During these searches, police can search for and/or seize “evidence” in the area within the arrestee’s “immediate control” from which he or she could reach a weapon or destructible evidence.[63] The Supreme Court later broadened the scope of a permissible search-incident-to-arrest to personal property “immediately associated with the person of the arrestee,”[64] finding the search of a package of cigarettes found on an arrestee reasonable, despite the lack of concern regarding weapons or destructible evidence.[65]

As of the Supreme Court’s 2014 decision in Riley v. California, law enforcement generally cannot use the search-incident-to-arrest exception to search the contents of cellphones.[66] The Riley decision has profound implications for journalists. In addition to text messages, call logs, emails, web history, and GPS location data, a journalist’s cellphone may contain contact information for sources, reporting notes and drafts, audio and video recordings, and photographs related to their First Amendment right to gather news.[67] Absent voluntary consent or a case-specific exigent circumstance, law enforcement cannot search a journalist’s cellphone without a warrant. Law enforcement can, however, seize it, examine it for physical threats, and secure it while a warrant is pending to search its contents.[68] During an arrest, law enforcement can also search the immediate surrounding area and personal property immediately associated with the journalist’s person such as an equipment bag, even without a safety or evidence preservation justification. Although Riley did not explicitly decide whether the Fourth Amendment permits searches of data on other electronic devices incident to arrest, its reasoning suggested that the rule applied to all electronic devices “with immense storage capacity,”[69] which lower state and federal courts have applied to prohibit searches of digital cameras[70] incident to arrest.

Privacy Protection Act of 1980

In addition to the Constitution’s safeguards, the federal Privacy Protection Act of 1980 provides additional protections against searches and seizures of materials intended for publication.[71] This law restricts the government from searching or seizing “any work product materials” or “documentary materials” from someone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication,”[72] including in the context of an arrest.[73]

If law enforcement attempts to search or seize journalists’ work product or documentary materials incident to arrest at a protest, journalists should make clear that they are members of the press, intend to disseminate materials to the public, and are therefore protected by the Privacy Protection Act (in addition to the Fourth Amendment). Whether the police were (or should have been) on notice that an individual intended to disseminate materials to the public can be a significant factor in any later lawsuits to challenge the seizure of materials.[74] Wearing press credentials and carrying a camera and videotapes may be sufficient to put law enforcement on notice of an intent to disseminate.[75]

The Act’s protections do not apply when law enforcement have probable cause to believe the person possessing the materials has committed or is committing a crime “to which the materials relate.”[76] In one case, a court found that police did not violate the Act when they searched the home and seized the equipment of a photojournalist whose actions (not displaying press credentials, behaving similarly to protesters, and fleeing with protesters when vandalism occurred) supported the conclusion that she “conspired with the group of vandals or aided and abetted the offenses committed by the group.”[77]

Police may also seize materials, if they act in good faith, to ensure safekeeping during arrest, but only if journalists receive their equipment back within a reasonable period of time. For example, a California federal court dismissed a journalist’s claim under the Act when law enforcement seized his camera and notebook during his arrest for short-term safekeeping.[78] In contrast, claims made under the Act tend to be resolved in favor of a journalist where law enforcement substantially interferes with the journalist’s newsgathering and reporting abilities or never returns the journalist’s property.[79] For example, an Oregon federal court found a citizen journalist adequately stated a claim under the Act when an officer interfered with her attempt to livestream an arrest using her cellphone, because the officer grabbed her phone, terminating the broadcast, and ordered her to show him the video.[80]

 

Common Charges

Location-Based Offenses

Trespassing is one of the most common charges journalists face when arrested while covering protests.[81] Journalists should be cognizant of where they are at all times and try to avoid trespassing on private property.

Conduct-Based Offenses

Journalists are also frequently arrested, along with protesters, for disorderly conduct,[82] obstruction,[83] and failure to disperse.[84] Other possible charges include failing to obey an officer’s orders, disturbing the peace, and resisting arrest. These charges involve a degree of subjectivity from the arresting officer, which can make it difficult to know what conduct is criminal. To help avoid arrest, journalists should prominently display their press credentials and follow police orders to the extent possible.

Wiretapping Violations

Although an increasing number of courts have recognized a right to record police officers performing their duties in public, it is still illegal in most states to surreptitiously record a private conversation without the consent of at least one party, or, in some states, all parties.[85] Whether a conversation is private is a fact-specific analysis that typically considers whether the person recorded had a reasonable expectation of privacy. Wiretapping laws vary considerably across the country.

 

Press Rights at Protests: A Summary

View and/or download a one-page PDF of this section.

1. Do I have a First Amendment right to cover a protest?

Yes, with limitations. Freedom of the press protects the right to collect and disseminate news, but the right is not absolute. Members of the media are subject to the same general laws as other citizens and do not have a special right of access to sources of information. However, police may not arrest a reporter or deny access simply to retaliate for negative news coverage or to prevent reporting on a public demonstration.

2. Do I have a First Amendment right to record the police?

Most courts recognize a First Amendment right to record the public activities of law enforcement, but the issue is not settled in all jurisdictions. In addition, it is illegal in most states to surreptitiously record a private conversation without the consent of at least one party or, in some states, all parties. Journalists should familiarize themselves with the applicable wiretapping law. See the Reporter’s Recording Guide for more about each state’s law. To reduce legal risks, journalists should clearly identify themselves as members of the press, record from safe distances, and remain open and transparent about recording.

3. Can police search and seize me and my equipment?

Police can briefly detain you if they have reasonable suspicion to believe you are engaged in criminal activity, and they can “frisk” or pat you down if they have an objective, reasonable belief that you are armed and dangerous. If police have probable cause to believe you are committing a crime, they can arrest you. Although a search of someone’s property generally requires a warrant issued by a court, during an arrest, police can search and seize personal property on your person and in your immediate vicinity. Although police cannot search the contents of a cellphone without a warrant, they can still seize it during an arrest, examine it for physical threats, and secure it while a warrant is pending. Other recording devices, such as cameras, may have similar protections, depending on the jurisdiction.

Under the Privacy Protection Act, the government cannot search or seize work product or documentary materials if the journalist intends to disseminate the materials to the public and is not engaged in any criminal activity to which the materials relate. Journalists should clearly identify themselves as members of the media to put police on notice that this law applies to them.

To mitigate the possible harm of a search or seizure, journalists can use live streaming platforms, minimize the amount of data kept on devices, and demand a court order for password requests. Journalists can also avoid consenting to searches, while remaining respectful.

4. Can I resist police orders based on my rights?

Possibly, but it is not recommended. Depending on the context and the applicable state laws, doing so could put you at risk of arrest for various crimes such as failure to obey, failure to disperse, obstruction of justice, and disorderly conduct. Journalists should comply with requests from law enforcement but can calmly discuss their rights if they feel a request violates those rights. Journalists should remain respectful when interacting with police and avoid acting in a manner that incites violence, creates danger, or interferes with law enforcement.

5. What steps can I take to avoid arrest?

You should identify yourself as a member of the press, be aware of what is happening around you during the event you are covering, and avoid breaking the law. See the Reporters Committee’s tip sheet for more.

 

Endnotes

  1. By Kelsey Fraser and Sarah Matthews. Attorneys at Reed Smith LLP contributed to the research and writing of this guide. Additional attorneys at the Reporters Committee contributed to 2024 revisions to this guide. The previous version of this guide, updated in 2022 and published as a PDF, is available here. (Return ↑)
  2. Kirstin McCudden, Between the bookends: 1 year of press freedom violations, Freedom of the Press Foundation (May 24, 2021), https://pressfreedomtracker.us/blog/between-the-bookends-1-year-of-press-freedom-violations/. (Return ↑)
  3. Id. (Return ↑)
  4. Id. (Return ↑)
  5. Kristin McCudden, Who’s assaulting journalists in 2023, Freedom of the Press Foundation (Sept. 29, 2023), https://pressfreedomtracker.us/blog/whos-assaulting-journalists-in-2023/. (Return ↑)
  6. Marsh v. Alabama, 326 U.S. 501, 509 (1946). (Return ↑)
  7. See, e.g., Bridges v. California, 314 U.S. 252, 262–63 (1941). (Return ↑)
  8. Cohen v. California, 403 U.S. 15, 24 (1971). (Return ↑)
  9. 40 U.S.C. § 6135 (“It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.”). (Return ↑)
  10. United States v. Grace, 461 U.S. 171, 179 (1983). (Return ↑)
  11. See Hodge v. Talkin, 799 F.3d 1145, 1162 (D.C. Cir. 2015) (noting “the Court Police’s usual practice of strict enforcement”). (Return ↑)
  12. Grace, 461 U.S. at 180. (Return ↑)
  13. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). (Return ↑)
  14. 18 U.S.C. § 1507. (Return ↑)
  15. Branzburg v. Hayes, 408 U.S. 665, 707 (1972) (“News gathering is not without its First Amendment protections.”); Curtis Pub. Co. v. Butts, 388 U.S. 130, 150 (1967); United States. v. Brown, 250 F.3d 907, 914 (5th Cir. 2001); Turner v. Lieutenant Driver, 848 F.3d 678, 688 (5th Cir. 2017) (Return ↑).
  16. See, e.g, Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“The right to speak and publish does not carry with it the unrestrained right to gather information.”); see also Branzburg, 408 U.S. at 682 (“It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”). (Return ↑)
  17. See, e.g., Eberhard v. Cal. Highway Patrol, No. 3:14-cv-01910-JD, 2015 WL 6871750 (N.D. Cal. Nov. 9, 2015) (finding probable cause to arrest journalist for trespassing to cover highway construction project protests). (Return ↑)
  18. Reed v. Lieurance, 863 F.3d 1196, 1212 (9th Cir. 2017); cf. Wright v. Georgia, 373 U.S. 284, 291–92 (1963) (“[O]ne cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution.”). (Return ↑)
  19. See, e.g., Nicholas v. N.Y.C., No. 15-CV-9592, 2017 WL 766905, at *1 (S.D.N.Y. Feb. 27, 2017) (denying government’s motion to dismiss lawsuit challenging revocation of press pass where photojournalist plaintiff was excluded from scene arbitrarily or based on viewpoint and others were permitted); see generally Lee Levine, et al., Newsgathering and the Law § 10.02[2], n.46 (4th ed. 2013) (collecting cases). (Return ↑)
  20. See, e.g., Levine, supra, n.47–48; Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) (holding that failure to articulate standards governing denial of White House press passes for security reasons violated First Amendment); Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020) (affirming district court’s determination that White House correspondent seeking preliminary injunction restoring his suspended hard pass was likely to succeed on merits of due process claim). (Return ↑)
  21. See, e.g., Branzburg, 408 U.S. at 684 (“It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”); Pell v. Procunier, 417 U.S. 817, 834 (1974) (“The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.”). (Return ↑)
  22. Houchins v. KQED, 438 U.S. 1, 11 (1978). (Return ↑)
  23. Goyette v. City of Minneapolis, 338 F.R.D. 109, 121 (D. Minn. 2021) (prohibiting the dispersal of “any person whom [officers] know or reasonably should know is a Journalist”); Index Newspapers LLC v. City of Portland, 480 F. Supp. 3d 1120, 1155 (D. Or. 2020) (same). (Return ↑)
  24. The New York Police Department recently enacted a policy that exempts credentialed journalists from dispersal orders; the policy was part of an agreement to settle lawsuits challenging the department’s response to the protests. Stipulated Order at 19, In Re: New York City Policing During Summer 2020 Demonstrations, 1:20-cv-08924 (ECF No. 1099–2). Similarly, a settlement agreement reached in a case against the Minnesota State Police provides that journalists are exempt from dispersal orders. Order Granting Plaintiffs’ Motion for Monitored Injunction at 7, Goyette, No. 20-cv-1302 (ECF No. 316). In addition, the Ninth Circuit recently upheld a preliminary injunction prohibiting federal officers in Portland, Oregon from ordering journalists and legal observers to disperse from city streets and sidewalks. U.S. Marshals Serv., 977 F.3d at 823–24. Finding that the defendants’ dispersal orders were neither essential nor narrowly tailored, the court stated that “peaceful protesters, journalists, and members of the general public cannot be punished for the violent acts of others.” Id. at 834. Similarly, a federal court in Minnesota held that dispersal orders did not apply to journalists because they had been exempted from local curfews and were reporting on protests rather than participating in them. Goyette, 2021 WL 5003065, at *5–6. Legislation has also been adopted to provide protections for journalists covering protests. See Cal. Pen. Code § 409.7 (exempting journalists from citation for failure to disperse or violation of a curfew and providing journalists “may enter . . . the immediate area surrounding any emergency field command post” that law enforcement establishes); Ark. Code Ann. § 5-71-206 (exempting journalists from prosecution for failure to disperse). (Return ↑)
  25. See Fields v. Philadelphia, 862 F.3d 353, 359–60 (3rd Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1, 7–8 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 500 (7th Cir. 2012); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000); Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022). (Return ↑)
  26. See, e.g., Glik, 655 F.3d at 83. (Return ↑)
  27. See Fields, 862 F.3d 353; Smith, 212 F.3d 1332. (Return ↑)
  28. Indiana Code § 35-44.1-2-14. (Return ↑)
  29. Nicodemus v. South Bend, No. 3:23-cv-00744 (N.D. Ind.). (Return ↑)
  30. Reporters Comm. for Freedom of the Press et al. v. Rokita et al., No. 1:23-cv-1805 (S.D. Ind.). (Return ↑)
  31. Project Veritas v. Schmidt, 72 F.4th 1043, 1066 (9th Cir. 2023) (holding that Oregon law prohibiting surreptitious recording of public, in-person conversations violates the First Amendment); Project Veritas Action Fund v. Rollins, 982 F.3d 813, 841 (1st Cir. 2020) (finding that the Massachusetts recording law violates the First Amendment as to its prohibition of “secret, nonconsensual audio recording of police officers discharging their official duties in public spaces”). (Return ↑)
  32. In Higginbotham v. Sylvester, 741 F. App’x 28 (2d Cir. 2018) (“Higginbotham II”), a video journalist challenged his arrest, claiming it was in retaliation for recording an Occupy Wall Street protest. The Second Circuit affirmed the trial court’s grant of summary judgment, finding that police had arrested the plaintiff after they had repeatedly told him to come down from a phone booth surrounded by a crowd of people, and he had refused to comply, endangering the safety of those around him. Id. at 31–32. The court concluded that no reasonable jury could find that the police had arrested him due to his recording activity as opposed to his reckless endangerment of others. Id. at 31. (Return ↑)
  33. See, e.g., City of Cumming, 212 F.3d at 1333 (recognizing First Amendment right to record). (Return ↑)
  34. See Johnson v. Hawe, 388 F.3d 676, 683–84 (9th Cir. 2004). (Return ↑)
  35. Courts can dismiss a case on qualified immunity grounds if: (1) a constitutional right was not violated, or (2) the right was not clearly established. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). (Return ↑)
  36. See Higginbotham v. New York, 105 F. Supp. 3d 369, 379–80 (S.D.N.Y. 2015) (“Higginbotham I”) (finding that a reporter who was forcibly arrested while covering a protest had a clearly-established First Amendment right-to-record claim); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 637 (D. Minn. 1972) (finding seizure of camera and film from journalist recording crime scene from public vantage point violated First Amendment for purposes of § 1983); Quraishi v. St. Charles Cty., 986 F.3d 831, 839 (8th Cir. 2021) (finding “it is clearly established that using an arrest (that lacks arguable probable cause) to interfere with First Amendment activity is a constitutional violation”); see also In letter to New York officials, Reporters Committee denounces police attacks against journalists, Reporters Committee (June 7, 2020), https://www.rcfp.org/nypd-attacks-on-journalists-letter. (Return ↑)
  37. See, e.g., Glik, 655 F.3d at 84–85 (finding right to record in public park was clearly established and distinguishing case law from other circuits that found a right to record was not clearly established); Irizarry, 38 F.4th at 1296 (finding right to record a traffic stop was clearly established, even though the Tenth Circuit had not squarely addressed the issue previously). (Return ↑)
  38. Higginbotham I, 105 F. Supp. 3d at 379. In a nonprecedential decision, the Second Circuit assumed without deciding that the First Amendment right to record exists. Higginbotham II, 741 F. App’x at 31. (Return ↑)
  39. See Terry v. Ohio, 392 U.S. 1, 8–9 (1968) (“This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”). (Return ↑)
  40. Walter v. United States, 447 U.S. 649, 655 (1980); see also Statement of Interest of the United States at 11, Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888 (D. Md. Jan. 10, 2012) (ECF No. 24) (“The interests animating the Fourth Amendment’s prohibition against unreasonable searches and seizures are heightened when the property at issue is also protected by the First Amendment.”). (Return ↑)
  41. Barham v. Ramsey, 434 F.3d 565, 573–75 (D.C. Cir. 2006) (quoting Ybarra v. Illinois, 444 U.S. 85, 91 (1979)). (Return ↑)
  42. See e.g., Garcia v. Montgomery Cnty., 145 F.Supp.3d 492, 523 (D. Md. 2015) (photojournalist argued law enforcement unlawfully seized his video card and had no probable cause to arrest him for disorderly conduct). (Return ↑)
  43. See United States v. Jacobsen, 466 U.S. 109, 113 (1984). (Return ↑)
  44. See, e.g., Black Lives Matter D.C. v. Trump, 544 F. Supp. 3d 15, 48–49 (D.D.C. 2021) (dispersal of protesters not a seizure because officers “attempted to cause the protestors and fleeing crowd to leave their location, rather than cause them to remain there”); Edrei v. City of New York, 254 F. Supp. 3d 565, 574 (S.D.N.Y. 2017) (dispersal order by police “not a seizure unless accompanied by the use of sufficient force intentionally to restrain a person and gain control of his movements”) (internal citations omitted); Quraishi, 986 F.3d at 840 (officers entitled to qualified immunity on reporters’ Fourth Amendment claim because not clearly established that tear gassing protesters did not constitute a seizure since reporters were “dispersed” and their “freedom to move was not terminated or restricted”). (Return ↑)
  45. See Torres v. Madrid, 592 U.S. 306, 317 (2021); see also Cole v. Lockman, No. 21-CV-1282, 2024 WL 328976, at *5–6 (D. Minn. Jan. 29, 2024) (law enforcement “objectively manifest[ed] an intent to retrain” two journalists because they had cornered the journalists who had “nowhere to go, or to be dispersed to,” while they were pepper sprayed and told “to get to the ground–i.e. to stay, not to go”) (emphasis in original). (Return ↑)
  46. See Terry, 392 U.S. at 21 (“[T]o justify such a seizure an officer must have a reasonable suspicion of criminal activity based on “specific and articulable facts . . . [and] rational inferences from those facts.”); Illinois v. Wardlow, 528 U.S. 119, 124 (2000); INS v. Delgado, 466 U.S. 210, 217 (1984). (Return ↑)
  47. Illinois v. Gates, 462 U.S. 213, 238 (1983). (Return ↑)
  48. Terry, 392 U.S. at 27; see also United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544 (1985). (Return ↑)
  49. See Hiibel v. Sixth Judicial Dist. Ct. Nev., 542 U.S. 177, 188 (2004); see also Florida v. Royer, 460 U.S. 491, 500 (1983) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”). (Return ↑)
  50. See Wardlow, 528 U.S. at 124. (Return ↑)
  51. See Brown v. Texas, 443 U.S. 47, 52 (1979).(Return ↑)
  52. See Hiibel, 542 U.S. at 186; United States v. Hensley, 469 U.S. 221, 229 (1985); Hayes v. Florida, 470 U.S. 811, 816 (1985); Royer, 460 U.S. at 497; Adams v. Williams, 407 U.S. 143, 146 (1972). (Return ↑)
  53. See Goyette, 338 F.R.D. at 122 (enjoining law enforcement from arresting journalists without probable cause and noting that “carrying a professional or authorized press pass or wearing a professional or authorized press badge or other official press credentials or distinctive clothing that identifies the wearer as a member of the press” constitutes “indicia of being a [j]ournalist”). (Return ↑)
  54. Katz v. United States, 389 U.S. 347 (1967). (Return ↑)
  55. Id. at 361 (Harlan, J., concurring). (Return ↑)
  56. Brigham City, Utah v. Stuart, 547 U.S. 398, 398 (2006). (Return ↑)
  57. Schmerber v. California, 384 U.S. 757, 768 (1966) (“[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.”). (Return ↑)
  58. Riley v. California, 134 S. Ct. 2473, 2484 (2014). (Return ↑)
  59. See, e.g., United States v. Drayton, 536 U.S. 194 (2002). (Return ↑)
  60. Kentucky v. King, 563 U.S. 452 (2011); Brigham City v. Stuart, 547 U.S. 398 (2006); Warden v. Hayden, 387 U.S. 294 (1967). (Return ↑)
  61. See United States v. Chadwick, 433 U.S. 1 (1977); United States v. Robinson, 414 U.S. 218 (1973); Chimel v. Cal., 395 U.S. 752 (1969). (Return ↑)
  62. Searches incident to illegal arrests are unlawful. See Rios v. United States, 364 U.S. 253 (1960). (Return ↑)
  63. Chimel, 395 U.S. at 762–63; see also Cupp v. Murphy, 412 U.S. 291 (1973). (Return ↑)
  64. Chadwick, 433 U.S. at 15 (finding that a 200-pound locked footlocker could not be searched incident to arrest). (Return ↑)
  65. See Robinson, 414 U.S. at 236. (Return ↑)
  66. For examples of how lower federal courts have applied Riley, see United States v. Lara, 815 F.3d 605 (9th Cir. 2017); United States v. Eisenhour, 44 F. Supp. 3d 1028 (D. Nev. 2014); United States v. Spears, 31 F. Supp. 3d 869 (N.D. Tex. 2014). (Return ↑)
  67. See Robert Corn-Revere, Protecting the Tools of Modern Journalism, American Bar Association: Communications Lawyer (Sept. 2014), https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/
    september2014/corn.pdf     (“Smartphones have become an integral part of modern newsgathering technology.”). (Return ↑)
  68. Riley, 134 S. Ct. at 2485. (Return ↑)
  69. Id. at 2489. (Return ↑)
  70. See Commonwealth v. Mauricio, 80 N.E.3d 318, 323–24 (Mass. 2017). (Return ↑)
  71. 42 U.S.C. § 2000aa. (Return ↑)
  72. Id. “Work product materials” are those that are (1) “prepared, produced, authored, or created by the person in possession of the materials or by any other person; (2) are possessed for the purposes of communicating such materials to the public; and (3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.” 42 U.S.C. § 2000aa-7(b). “Documentary materials” are “materials upon which information is recorded” such as written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs. Id. at (b). To qualify as protected work product or documentary materials, they may not be contraband, fruits of a crime, or otherwise possessed for a criminal purpose. Id. at (a–b). (Return ↑)
  73. See, e.g., Morse v. Regents of Univ. of California, Berkeley, 821 F. Supp. 2d 1112, 1120 (N.D. Cal. 2011) (journalist claiming wrongful arrest stated a valid Privacy Protection Act claim against police supervisors). (Return ↑)
  74. See, e.g., Binion v. St. Paul, 788 F. Supp. 2d 935 (D. Minn. 2011) (denying summary judgment on Privacy Protection Act claim where fact issue existed regarding whether journalist put police officers on notice that she intended to disseminate videotapes to the public); Garcia, 145 F. Supp. 3d at 524–25 (same); see also Teichberg v. Smith, 734 F. Supp. 2d 744, 751–52 (D. Minn. 2010) (granting summary judgment on Privacy Protection Act claim where plaintiff did not identify himself as a journalist, and seizure was temporary). (Return ↑)
  75. Binion, 788 F. Supp. 2d at 948–49. (Return ↑)
  76. See 42 U.S.C. § 2000aa(a)(1), (b)(1); Sennett v. U.S., 667 F.3d 531 (4th Cir. 2012); Berglund v. Maplewood, 173 F. Supp. 2d 935 (D. Minn. 2001). (Return ↑)
  77. Sennett, 667 F.3d at 534–37; see also Garcia, 145 F. Supp. 3d at 524–25 (denying government’s motion for summary judgment where fact issues existed regarding whether there was probable cause to believe the plaintiff engaged in disorderly conduct and whether the video recording related to that offense); Binion, 788 F.Supp.2d at 948 (finding the probable cause exception inapplicable where law enforcement did not have probable cause to arrest the journalist). (Return ↑)
  78. See Eberhard, 2015 WL 6871750 at *8. (Return ↑)
  79. See Medina v. City of Portland, No. 3:15–cv–00232, 2015 WL 4425876, at *1–2 (D. Or. 2015) (substantial interference with smart phone broadcast); Garcia, 145 F.Supp.3d at 498 (permanent seizure of video card). (Return ↑)
  80. See Medina, 2015 WL 4425876 at *1­–2. (Return ↑)
  81. See Arrests of journalists involving trespass charges or threatened charges, U.S. Press Freedom Tracker, https://pressfreedomtracker.us/all-incidents/?categories=4&charges=5. (Return ↑)
  82. See Arrests of journalists involving disorderly conduct charges, U.S. Press Freedom Tracker, https://pressfreedomtracker.us/all-incidents/?categories=4&search=disorderly conduct. (Return ↑)
  83. See Arrests of journalists involving obstruction charges, U.S. Press Freedom Tracker, https://pressfreedomtracker.us/all-incidents/?charges=obstruction&categories=Arrest%2FCriminal+Charge. (Return ↑)
  84. See Arrests of journalists involving failure to disperse charges, U.S. Press Freedom Tracker, https://pressfreedomtracker.us/all-incidents/?charges=rioting%3A+failure+to+disperse&categories=Arrest%2FCriminal+Charge. (Return ↑)
  85. See generally Reporter’s Recording Guide, https://www.rcfp.org/recording. (Return ↑)