Police appear to be violating the First Amendment rights of protesters and journalists in Ferguson by arresting and targeting journalists and by turning the right to assembly into a daytime-only right.
“Police and officials in Ferguson have declared war on the First Amendment,” said Gregory P. Magarian, a law professor at Washington University Law School. “Since Sunday’s police shooting of an unarmed student, Michael Brown, local officials and law enforcement have blatantly violated three core First Amendment principles: our right to engage in peaceful political protest, the importance of open government and the freedom of the press.”
He added that on the second day of protests, “In the space of one evening, police in Ferguson conducted a master class in destroying the freedom of the press.”
Other legal experts at Washington University and Saint Louis University law schools and a media lawyer agreed police actions apparently violated the First Amendment rights of protesters and journalists. In addition, the American Civil Liberties Union of Eastern Missouri has been active in challenging restrictions on protesters and journalists.
Traditional place to protest
The First Amendment issues deepened on the first Wednesday of the protest as police tried to keep protesters off the streets at night and as reporters, news crews and citizen journalists were arrested and targeted for police action.
Reporters from the Washington Post and Huffington Post were arrested in a McDonald’s restaurant when they did not quickly obey a police order to leave. Alderman Antonio French, whose blogs from the protests have been journalistic, was arrested for not leaving a protest that had been declared an illegal assembly. And police fired tear gas close to an Al Jazeera America crew setting up for a report.
The incidents with reporters continued in the ensuing days with Ryan Devereaux, a reporter for the Intercept hit in the back with a rubber bullet and arrested and photographer Raffe Lazarian threatened by an officer with a gun when he asked where the approved press area was situated. The National Press Photographers Association, which has had a lawyer at the protests, filed an official complaint on Lazarian’s behalf.
Alan Howard, a law professor at Saint Louis University, said early in the protest that talking back to police or showing them disrespect is not enough to justify an arrest.
“Individuals have a right to speak back to the police — the police do not have the authority to demand total submissiveness,” he wrote in an email. “…questioning police authority as such is not resisting arrest, especially when the questioning occurs before any arrest and seems to be the action that triggered the arrest.”
Howard wrote, “what the protesters are saying by their signs, shouting, raising their hands and the like is clearly protected speech — it is political speech. Moreover where they are speaking — on public streets and sidewalks– are public forums and thus are places where citizens have a presumptive right to speak.”
Even though the streets are traditional places for protest, authorities can establish reasonable time, place and manner restrictions that are “non-censorial,” Howard said.
One manner restriction upheld by a federal court during the second week of the protest required protesters to keep moving during their demonstrations. That restriction also applied to the press.
But Howard doubts that police can ban nighttime protests except when there is a curfew in effect.
He said, “So the police say that they are not banning assembly entirely — just prohibiting the congregation of lots of people late at night where experience has shown that the congregation of lots of people has crossed over from protest into violence, looting and so forth. Whether what the police are doing constitutes a permissible time, place and manner response is clearly debatable however…do they really need to turn the right to assembly into a ‘daytime’?”
Not just daytime right
Magarian answers Howard’s rhetorical questions with an emphatic no. He concedes that “the police have proper authority to pursue and arrest violent protesters, looters and arsonists,” but adds, “What they don’t have any authority to do is treat peaceful protesters like criminals.
“In extreme circumstances, where violence pervades a city and overwhelms the ability of police to maintain order, the government can take measures like clearing the streets or declaring a curfew. But Ferguson in 2014 is not Detroit in 1967 or Los Angeles in 1992. Only a small handful of citizens have engaged in criminal acts in Ferguson. The main violence on the streets of Ferguson is police violence.
“… Without declaring a curfew – because a curfew wouldn’t hold up in court – police are simply bullying people off the streets at night.”
The First Amendment doesn’t say protests are limited “only during daytime hours, when police feel like letting us speak and assemble,” he wrote. “By suppressing political protest, police in Ferguson are attacking the heart of the First Amendment.”
Mark Sableman, a media lawyer for Thompson Coburn, said the police actions against reporters were especially disturbing.
“Reporters are carrying out an important and constitutionally protected role in reporting on events, and that role should be recognized by police. The distinction between reporters and others is made all the time, in public buildings with press rooms and press tables, courtrooms, at crime scenes, and even in foreign combat venues. If there was a disruption in the back row of a courtroom, and for some reason the spectators had to be cleared from the courtroom, it wouldn’t be proper to clear out the press row, too.
“It is even more disturbing when, in addition to a general lack of sensitivity to media interests, there also appears to be efforts to suppress coverage. We see that occasionally in tense scenes when police try to stop photography, or try to take or erase photography. That is uniformly improper, and sends a red flag to the public, which is entitled to see with its own eyes, through media photography, whatever is happening. Reports from Ferguson of police commands to shut off cameras are therefore particularly troublesome.”
William H. Freivogel is director of the School of Journalism at Southern Illinois University in Carbondale and a member of the Missouri Bar.