News Reporters Participating in Protests and the First Amendment: 

Robert Phillips, Deputy District Attorney (Ret). 

Question:  If a news reporter for a properly credentialed news agency, while reporting on a public protest or civil demonstration, steps out of his shoes as a reporter and engages individual protestors with whom the reporter may personally disagree in a debate, thus becoming part of the problem by potentially agitating an already tense situation, is he still protected by the First Amendment’s Freedom of the Press?”  I.e.; does the First Amendment shield him from arrest?  Or, looking at the other side of this same coin, does a police officer incur any civil liability when he attempts to enforce a city’s policy of separating opposing protestors into separate demonstration areas, and then arrests (or threatens to arrest) a news reporter who ventures into one demonstration area or the other, debating the protestors with whom the reporter may disagree?

This was the question asked in the recent Ninth Circuit Court of Appeal decision of Saved Magazine v. Spokane Police Department (Dec. 9, 2021) __ F.4th __ [2021 U.S.App. LEXIS 36304].

Looking at the available precedent, the Ninth Circuit noted the lack of any prior case authority that might establish a rule, pro or con, settling the issue as to whether the Spokane Police Department was violating any First Amendment-related law, or that the officer involved acted unreasonably in “examin(ing) the substance of (the news reporter’s) speech in order to enforce the separate protest zone policy.”  The general rule is that a court cannot impose civil liability upon any party to a lawsuit absent “clearly established statutory or constitutional rights of which a reasonable person would have known.”  By “clearly established,” the courts are talking about prior published cases that would have put a civil defendant on notice that what he was doing was illegal or unconstitutional.  In this case, it not being a clearly established settled issue, the Court found that the officer here was entitled to qualified immunity when sued.  Further, the Court held that the City of Spokane could not be held liable under a “Monell theory” because even assuming city police officers violated the journalist’s First Amendment rights, nothing in the complaint plausibly alleged a policy, custom, or practice leading to that violation, and that plaintiffs’ allegations amounted to no more than an isolated or sporadic incident that could not form the basis of Monell liability for an improper custom.  If you’re not familiar with Monell, that’s where the U.S. Supreme Court held that a city or other local governmental entity is not subject to civil liability unless the harm at issue was caused in the implementation of an “official municipal policy.”  (See Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658.)  But back to the case of Saved Magazine:  All this case says, therefore, is that to date, separating protesters into separate demonstration areas, and then threatening to arrest a news reporter for becoming personally engaged in the demonstration by wandering into the opposing side’s assigned area and arguing with the protesters (as opposed to standing back and merely reporting on it), does not appear to be a violation of that reporter’s First Amendment—Freedom of the Press—rights.  But what Saved Magazine does not say is that tomorrow—given the lack of any prior precedent deciding these issues—another court is prevented from considering these issues on their merits and decide to the contrary.  In other words, the Saved Magazine decision itself is really of no precedential value.  So why we’re even bothering with it, I have no idea.