Press rights at a protest
Quick guide: Q & A from Michigan Press Association on Press Protections at a Protest.
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. 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.