First Amendment Protections for Journalists Covering Protests

The killing of George Floyd and the ensuing civil unrest have placed journalists at the center of large-scale protests and demonstrations across the United States, including in major metropolitan centers throughout Texas.  In the course of covering these protests, many journalists have found themselves in harm’s way, and members of the press corps have been assaulted, detained, or arrested in the line of duty. The press has a responsibility to cover these public events, and the First Amendment protects journalists’ ability to cover public demonstrations, such as those going on in response to the death of George Floyd. The following outlines First Amendment protections as they relate to coverage of protests and demonstrations.

By WESLEY LEWIS, Haynes and Boone, LLP

Does the Press Have a First Amendment Right to Cover Protests?
Yes. In general, journalists have a First Amendment right to cover protests and demonstrations.  Members of the press cannot be excluded from public spaces simply because they are journalists. Similarly, law enforcement cannot prevent journalists from reporting, and law enforcement or government officials cannot retaliate against journalists for doing their job.  
At the same time, these First Amendment protections do not place journalists above the law. Journalists are still generally subject to the same laws and restrictions as the public, including orders regulating the time, place, and manner of First Amendment activity. Furthermore, members of the press typically do not enjoy special access to places or information that are not accessible to the public, and the First Amendment does not allow journalists to trespass or otherwise break the law, even if they are doing so in furtherance of newsgathering efforts or to report on protests or demonstrations. 
Can Journalists Record Law Enforcement Activity at Public Protests?
Taking photographs or video of people or events that are visible in public is permissible and constitutionally protected. Journalists who are lawfully present in a public space have the right to record anything in plain view—including police activity, so long as the press activity is not interfering with legitimate law enforcement operations. By contrast, when an individual is on private property, the owner of the property may restrict anyone’s ability to record or require individuals to leave for any reason.  
As stated above, First Amendment protections to engage in newsgathering activity do not entitle journalists to break the law, such as laws against trespassing. Journalists should also be familiar with Texas’ wiretapping statute, which prohibits surreptitious recording of private conversations without consent.  Under Texas Law, a person may only record audio of conversations if those conversations are in a public place where there is no reasonable expectation of privacy, or if at least one party to the conversation has consented to the recording. As a matter of best practices, journalists should clearly identify themselves as members of the press and remain open and transparent about their use of recording devices.
When Can Journalists Be Detained or Searched?
If a law enforcement officer has a reasonable suspicion that a person is involved in criminal activity, that officer can temporarily detain him or her in what is known as a “Terry stop,” (also known as a “stop and frisk”). During such a stop, a law enforcement officer may conduct a pat-down to ensure that a detainee is not armed and dangerous. For a law enforcement officer to arrest someone, the officer must have probable cause to believe that the person committed a crime. This is a higher standard than the “reasonable suspicion” required for a temporary stop-and-frisk.
The Fourth Amendment protects individuals from unreasonable searches or seizures of their property.  Furthermore, the Privacy Protection Act of 1980 prevents law enforcement officers from searching and seizing a journalist’s work product, including notes, photographs, and video footage, without a warrant.  If a law enforcement officer demands to inspect such newsgathering materials, journalists should clearly identify themselves as members of the press and explain that they are covered by this law. Furthermore, in the absence of a warrant, journalists may withhold consent for law enforcement to search their belongings or work product, including the contents of recording devices and cellular telephones.
What Should Journalists Do if Confronted by Law Enforcement?
Journalists should exercise extreme caution covering protests and demonstrations. Members of the press have reported incidents in which journalists have been targeted by law enforcement for covering protests. Members of the press have been detained or arrested, shot with rubber bullets, and sprayed with tear gas or pepper spray in the course of their reporting in the field. Journalists should remain alert and mindful that they may face hostility from both demonstrators and law enforcement when covering these protests.
Journalists should be sure to carry a government-issued identification, as well as contact information for attorneys or organizations—including the Texas Press Association or the Reporters Committee for Freedom of the Press—that can provide legal resources and guidance to journalists. Journalists should clearly identify themselves as members of the press and prominently display all press credentials. Members of the press should remain alert and cognizant of potential threats, and should calmly and respectfully discuss their rights with law enforcement if they feel that their First Amendment rights to engage in newsgathering activity are being violated.
Furthermore, journalists in the field should stay apprised and mindful of any dispersal orders or curfews that may impact their ability to be in public spaces. Many state and local curfews contain exemptions for members of the media, but members of the press should stay aware of any developments that may impact their ability to safely or legally be at the scene of a public demonstration. 
Texas journalists should contact the Texas Press Association at 512-477-6755 or the Reporter’s Committee for Freedom of the Press at 800-336-4243 or rcfp@hotline.org.