“We Don’t Need No Stinkin’ Press Passes” First Amendment Rights and New Court Rulings

 We Don’t Need No Stinkin’ Press Passes

John Grant   Published: Sunday 9 October 2011  
Nation of Change

The First Amend­ment right to gather news is, as the Court has often noted, not one that in­ures solely to the ben­e­fit of the news media; rather, the pub­lic’s right of ac­cess to in­for­ma­tion is co­ex­ten­sive with that of the press.
United States Court of Ap­peals For the First Cir­cuit,
Au­gust 26, 2011

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I spent a day in Free­dom Plaza, a tri­an­gle of con­crete ad­ja­cent to sev­eral high-end ho­tels with shiny black Mer­cedes limos out front three blocks from the White House. It’s Wash­ing­ton DC’s entry in the Oc­cupy Amer­ica phe­nom­e­non.

I came wear­ing two hats. One, I’m a Viet­nam vet­eran mem­ber of Vet­er­ans For Peace who has ac­tively worked for over a decade against our bank­rupt­ing wars. And, two, I’m an ex­pe­ri­enced jour­nal­ist with a mas­ter’s de­gree who works in both im­ages and words. I won’t take a back seat to any­one in what is known as the Main Stream Media.

The crowd of maybe 700 peo­ple oc­cu­py­ing Free­dom Plaza was fired up. The focus of the oc­cu­pa­tion was on the wars and the “one per­centers” at the top of the eco­nomic heap in Amer­ica who con­trol our lives more and more as they pur­sue more and more “free mar­ket” prof­i­teer­ing.

This mon­ster of greed has al­ways ex­isted in his­tory, but this lat­est binge was un­leashed by a hack Hol­ly­wood actor who be­came Pres­i­dent of the United States 30 years ago. Every­thing has been dereg­u­lated and the ruth­less fi­nan­cial reap­ings by this class led to a pro­gres­sion of burst­ing bub­bles, an eco­nomic melt­down and a sub­se­quent tax-payer bub­ble in the form of mas­sive bailouts.      

We all know the story by now. We know who got bailed out and who ended up hold­ing the bag and los­ing their homes, peo­ple like An­drea Agizi, a sin­gle mother from At­lantic City I ran into in Free­dom Plaza. Up until the re­cent wave of “oc­cu­pa­tions” across Amer­ica, those who ended up pay­ing for this free-mar­ket ex­trav­a­ganza were si­lenced and mar­gin­al­ized.

The slick fi­nan­cial wiz­ards who sliced and diced An­drea’s mort­gage for profit all wor­ship the “free mar­ket.” They tend to be very lib­eral with those prof­its when it comes to fi­nanc­ing po­lit­i­cal can­di­dates who, once in of­fice, lower their taxes even fur­ther.

But, a funny thing, when these free mar­ke­teers saw the baroque free mar­ket in­vest­ment ma­chine they’d cre­ated swirling in cir­cles down the toi­let – a money-mak­ing ma­chine that had been fully en­dorsed and shilled for by the lib­er­tar­ian or­a­cle at Del­phi Alan Greenspan – they turned into flam­ing so­cial­ists with all our tax dol­lars. After all, the na­tion didn’t want fi­nance pi­rates jump­ing out of win­dows.

We’re liv­ing in the endgame of a huge Ponzi scam. Though they’re fi­nanced by bil­lion­aires like the Koch Broth­ers, even mem­bers of the right wing Tea Party rec­og­nize this top-heavy scam. All work­ing peo­ple know it in their bones, and that even in­cludes many of your av­er­age, work­ing stiff po­lice of­fi­cers, the man and woman on the front line or­dered by those on top to con­trol the angry vic­tims of this multi-decade Ponzi scam.

There’s the sense sud­denly that peo­ple have had enough, that things have got­ten to the point peo­ple have lit­tle more to lose. If they’re not on the street they know why those on the street are there. The sense of bi­par­ti­san cor­rup­tion is so pro­found that even the most con­ser­v­a­tive and cau­tious of cit­i­zens can no longer say there’s noth­ing wrong with the sys­tem. It’s star­ing all of us in the face.

On the plaza, I net­worked with friends and al­lies and, then, lis­tened to David Rovics, singer song­writer from Port­land, Ore­gon, sing metaphor­i­cally of bul­lies in the school­yard and about the veg­etable vender in Tunisia so fed up with a cor­rupt sys­tem he set him­self on fire and set off a con­fla­gra­tion now called the Arab Spring move­ment.

After that, hun­dreds of angry oc­cu­piers ven­tured from the Plaza and marched to the na­tional head­quar­ters build­ing of the U.S. Cham­ber of Com­merce, a no­to­ri­ous lobby and de­fender of cor­po­ra­tions and free-mar­ket plun­der­ers. The façade of the build­ing fea­tured huge let­ters that spelled out JOBS. This was a major focus of the demon­stra­tors, since as a cathe­dral de­voted to wor­ship of a fic­tional free-mar­ket, jobs was not a pri­or­ity for the U.S. Cham­ber of Com­merce un­less they some­how con­tributed to lin­ing the port­fo­lios of men in $2,000 suits.

Mean­while, mak­ing things even more in­ter­est­ing, a tall and lanky rav­ing lu­natic with a mega­phone per­sisted on wan­der­ing through the crowd scream­ing “Jesus! Jesus! Jesus!”, an­noy­ing every­one ex­cept some of the cops nearby di­rect­ing traf­fic, who could not re­strain them­selves from chuck­ling. They seemed glad they weren’t the only ones that day strug­gling to re­main cool-headed in the face of op­po­si­tion.

There’s al­ways a cir­cus at­mos­phere about street demon­stra­tions, since they are by de­f­i­n­i­tion rude. No mat­ter how you squeeze it, a street demon­stra­tion is not a venue for nu­anced ar­gu­ment. Peo­ple are fed up and angry, and they want to pub­licly ex­press that anger.

So around 500 demon­stra­tors pressed up to the huge wooden doors of the Cham­ber of Com­merce. Ten po­lice of­fi­cers had been des­ig­nated to hold the line and stand be­tween the demon­stra­tors and the doors. The demon­stra­tors then un­furled a long ban­ner right in front of the cops, mak­ing it so the crowd could no longer see the cops on the steps.

I began shoot­ing to cap­ture the scene. I worked the area from left to right, fore to aft, get­ting my mas­ter shots and, then, work­ing in closer, fo­cus­ing on in­di­vid­u­als and in­ter­est­ing wide-an­gle com­po­si­tions. I passed under the ropes hold­ing up the long ban­ner and got onto the three steps of the entrance at the far left end of the steps. Sev­eral other jour­nal­ists were al­ready there. I took a cou­ple shots and stepped up to the top step for a higher angle. If I could arrange it, I wanted a shot that included the cops from the back and the demon­stra­tors in front of them.

Then I no­ticed a tall, shaved-head po­lice sergeant from the other side of the stair­way com­ing right at me. I knew ex­actly what he wanted. In­stinc­tively, I lined up a wide-an­gle shot and waited until he got to the spot in the com­po­si­tion where I wanted him. I hit the shut­ter and the fill-flash went off. I was wear­ing a T-shirt with VET­ER­ANS FOR PEACE and the or­ga­ni­za­tion’s peace dove hel­met logo blazened across my chest.

“Do you have a press pass?” he asked.

“No, I don’t,” I said.

“Then you can’t stand here. You’ll have to move.”

At least three jour­nal­ists with of­fi­cial press passes hang­ing around their necks stood on the steps be­hind me. An­other VFP mem­ber stood nearby, also with a cam­era.

“I don’t have to go any­where,” I told him. “The law says I have as much right to stand here as any­one with a press pass. I don’t need one; I have the First Amend­ment to the Con­sti­tu­tion. That’s the law. It was clearly es­tab­lished sev­eral weeks ago in a First Cir­cuit Court of Ap­peals rul­ing.”

I re­gret­ted I had not brought a copy of the rul­ing, which I could have nicely handed to him, em­pha­siz­ing the ap­pro­pri­ately un­der­lined pas­sages that pointed out in no un­cer­tain terms how the First Amend­ment cov­ered all Amer­i­cans – not just mem­bers of the well-heeled, cor­po­rate press. The issue, I tried to tell him, was not MY lack of a press pass; the issue was HIS de­cid­ing I needed one to re­main where I was.

I don’t pre­sume to stand in her el­e­vated cat­e­gory, but, still, I felt a lit­tle like Rosa Parks, who also knew she was right and who also was ex­ploit­ing the pre­dictable ig­no­rance of those telling her to move to the back of the bus.

I looked the of­fi­cer in the eye and he seemed to be a rea­son­able man. I fig­ured he was under or­ders to hold his ground be­tween what may have been for him a clas­sic rock and a hard place. He was still in­sist­ing that I had to move.

“Look,” I told him. “You can throw me off this step if you want. But if you do that it’s you who are break­ing the law, not me. I’m not in­ter­fer­ing with your job; you’re in­ter­fer­ing with me doing mine.”

I had con­cluded I was right and it was a prin­ci­ple I was going to stand up for to the bit­ter end. I laughed in­side be­cause I had ear­lier de­clared to the VFP com­rade also on the step with me that I had no in­ten­tion of get­ting ar­rested. But there I was, un­will­ing to budge. If this guy needed to es­ca­late, bring out the pep­per spray or lock me up, I was ready.

The sergeant and his squad were on their best be­hav­ior and likely under strict or­ders not to muss the hair on any demon­stra­tors head that day. They didn’t want an­other wild pep­per-spray­ing in­ci­dent like the one that came to char­ac­ter­ize the oc­cu­pa­tion in New York. So, the sergeant backed off and let me stay where I was. He sar­cas­ti­cally said, “Thanks for your co­op­er­a­tion” as he walked away.

I took a few more shots and, then, moved on. Maybe 20 min­utes later I worked my way to the other side of the steps and climbed up on the ledge into a patch of flow­ers. I found my­self right next to the same sergeant, who turned around and, sure enough, asked me, “Do you have a press pass?”

I laughed and said, “C’mon, we just went through that on the other side of the steps.”

“Oh, was that you?” he asked. I shrugged. This time, he cracked a smile. “OK, you can stand there.”

“Thanks,” I said, ap­pre­cia­tive of his new mag­na­nim­ity. I made nice in re­turn. “Look, you guys are doing a great job here,” I said. And it was true. That day the po­lice did their duty pro­tect­ing the build­ing and those in­side with­out suc­cumb­ing to a need to as­sault demon­stra­tors. They re­mained de­tached and pro­fes­sional and did not take sides. Again, as work­ing men and women one should not pre­sume they’re not in sym­pa­thy with the spirit and theme of such an oc­cu­pa­tion.

Men in ex­pen­sive suits looked out the win­dows of an upper floor of the Cham­ber build­ing. One could only imag­ine the fun they were hav­ing watch­ing the angry peas­ants below in the street. Later, a dear friend of mine whose son was killed in Iraq con­fided in me that she had wanted to chuck a large rock through the win­dows at these men.

At any point the sergeant I con­fronted could have taken a dif­fer­ent tack. He could have de­cided I was an ob­nox­ious, dis­re­spect­ful jerk who was di­rectly chal­leng­ing his del­i­cate cop ego. If he’d es­ca­lated and drug me off to jail, I would have had to de­cide whether to spend good money to hire an at­tor­ney to file a law­suit. If I was lucky enough not to run into a right-wing judge with an agenda, maybe months in the fu­ture I might win some­thing for my grief.

My con­fronta­tion was in­struc­tive but not very sig­nif­i­cant. The issue, how­ever, is a crit­i­cal one fol­lowed closely by peo­ple like Car­los Miller, who has beaten two ar­rests for video­tap­ing cops and col­lects the most up-to-date sto­ries of cops-ver­sus-cam­eras at Pho­tog­ra­phy Is Not A Crime. Radley Balko, a con­tribut­ing ed­i­tor at the lib­er­tar­ian mag­a­zine Rea­son is an­other; he has cov­ered sto­ries like a biker with a hel­met cam­era ha­rassed by Mary­land cops. Miller also in­ter­viewed the biker, who was ar­rested after he put a video­tape of a plain-clothed Mary­land cop threat­en­ing him with a drawn pis­tol on You Tube.

There is some ev­i­dence of progress. In At­lanta, fol­low­ing a suc­cess­ful law­suit brought by a group calledCop­watch, the po­lice de­part­ment has de­clared it will no longer ha­rass peo­ple for video­tap­ing cops and will train its cops in the issue.

The issue be­comes most acute as smaller and smaller cam­eras are em­ployed dur­ing heated ex­changes be­tween cops and pro­test­ers in street in­ter­ac­tions like Oc­cupy Wall Street and oth­ers. As in Chicago back in 1968, the ques­tion be­comes who’s doing the ri­ot­ing, the pro­test­ers push­ing the en­ve­lope or the cops wail­ing with ba­tons and pep­per spray.

The fact is, when under pres­sure po­lice seem to feel they don’t have to fol­low the law and rec­og­nize the rights of or­di­nary, non-cre­den­tialed cit­i­zens to record their ac­tions. At worst, po­lice agen­cies fall back on ju­di­cial ha­rass­ment and in­tim­i­da­tion. That’s what they did in the Simon Glik case cited at the top of this story.

Some may see this as a small mat­ter, es­pe­cially those in­clined to shut down crit­i­cal, left-lean­ing voices. But for those being shut down, the tram­pling of fun­da­men­tal First Amend­ment rights is a first cousin to the huge cult of se­crecy now ram­pant in the US. It’s an­other weapon of state con­trol.

The clearly es­tab­lished rights of in­de­pen­dent, un-cre­den­tialed cit­i­zens to func­tion as jour­nal­ists should be made clear to po­lice lead­ers and to the of­fi­cers on the street. This is clearly not being done, since the Press Pass, is­sued by gov­ern­ment bod­ies and some­times by po­lice, con­tin­ues to be a ticket re­quired for ac­cess to things the law says should be open to all.

The First Cir­cuit Court in the Simon Glik case was very clear. Here’s some of its lan­guage:

“In our so­ci­ety, po­lice of­fi­cers are ex­pected to en­dure sig­nif­i­cant bur­dens caused by cit­i­zens’ ex­er­cise of their First Amend­ment rights. … [The] First Amend­ment right pub­licly to record the ac­tiv­i­ties of po­lice of­fi­cers on pub­lic busi­ness is es­tab­lished. …[P]eace­ful record­ing of an ar­rest in a pub­lic space that does not in­ter­fere with the po­lice of­fi­cers’ per­for­mance of their du­ties is not rea­son­ably sub­ject to lim­i­ta­tion. …[A] cit­i­zen’s right to film gov­ern­ment of­fi­cials, in­clud­ing law en­force­ment of­fi­cers, in the dis­charge of their du­ties in a pub­lic space is a basic, vital, and well-es­tab­lished lib­erty.”

For a PDF of the Glik rul­ing, go to: Gilk rul­ing.

Last year the pres­ti­gious George Polk Award for Jour­nal­ism was given to the anony­mous video­g­ra­pher who cap­tured a woman being shot in the head in a street demon­stra­tion in Iran. In this case, a pres­ti­gious na­tional jour­nal­ism award com­mit­tee con­cluded a press pass was not nec­es­sary to qual­ify as a le­git­i­mate jour­nal­ist.

Based on these kinds of es­tab­lished legal and pro­fes­sional un­der­stand­ings, the in­sti­tu­tion of the Press Pass should be ban­ished from ex­is­tence as ir­rel­e­vant to the ques­tion who has the right, and who doesn’t have the right, to record po­lice ac­tiv­i­ties.

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2 comments

  1. (The system cut off the first part of my comment.) Yes, the writer does have the “right” as affirmed by the Courts. But with “rights” come “responsibilities”. Don’t wear a shirt indicating that you are part of the protest, but then when challenged by law enforcement hide behind the right of the press. Cops are under enough pressure, and are vastly outnumbered, to do the right thing, but there comes a time when they won’t be able to go case-by-case with each individual. John should use some common sense and wear somewhat “neutral” clothing when operating as a member of the “press”. Avoid creating a situation that doesn’t help anyone.

    Like

  2. Courts. But with “rights” come “responsibilities”. Don’t wear a shirt indicating that you are part of the protest, but then when challenged by law enforcement hide behind the right of the press. Cops are under enough pressure, and are vastly outnumbered, to do the right thing, but there comes a time when they won’t be able to go case-by-case with each individual. John should use some common sense and wear somewhat “neutral” clothing when operating as a member of the “press”. Avoid creating a situation that doesn’t help anyone.

    Like

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