“Those who are capable of tyranny are capable of perjury to sustain it.”
So, this has been a few days in coming, but I wanted to get some other groundwork laid down before I started trying to put this together. It may be a work in progress page, and I may move it somewhere else later on if I need to.
When I started planning for going out to stream protests, I had trouble figuring out what my rights were. It turned out it didn’t take much research to get some good info to start with. Obviously, the First Amendment of the Constitution is the first starting point:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Founding Fathers knew the risk of one person controlling the narrative of the story that is news. Back then, printing was rare and expensive, but really, anyone could write down their thoughts, as long as you were literate. In the future, a lot of things have changed, and of course, the law changes with that. But the fact that freedom of the press was so important that it made it as the first amendment is telling.
The news is a lucrative business, and even with a decline in print media it’s still an industry that’s worth more money per year than I will ever see in my lifetime. In 1945, however the court heard the case of the Associated Press v. United States, where the AP violated antitrust laws by trying to control the flow of news from their reporters to others outside their organization. At the time, Justice Hugo Black wrote:
“The First Amendment … rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public … Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not”.
The way I personally read it, this helps prove that anyone, big or small, can access the news and retell it from other people. It helps prevent any one news outlet from taking over the story, and even today, services like AP, NPR, Washington Post and the New York Times trade news back and forth and with other and with other outlets.
One of the arguments that I’ve most often seen online is “just because you have a camera doesn’t make you a reporter”. Which is patently false. Another case, the Obsidian Finance Group, LLC v. Cox, is another good indication. In that case, which was heard in the same jurisdiction Portland is in, a blogger maintained blogs that were alleged to be defamatory to the Obsidian Finance Group. While the court -did- find that there was defamation involved, and ruled in favor of the plantiffs, an important distinction was made during the appeals process. Two different statements by Judge Andrew Hurwitz:
“And, although the Supreme Court has never directly held that the Gertz rule applies beyond the institutional press, it has repeatedly refused in non-defamation contexts to accord greater First Amendment protection to the institutional media than to other speakers.”
“The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings or tried to get both sides of a story. … In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.”
Both of these statements simply reinforce that one does not need to be a member of a traditional media source to be considered press. The jump from a blogger to a livestreamer, considering the medium was in it’s infancy at the time, is a much smaller jump than the jump comparing the Oregonian to, say, this site.
In the current climate that we’re dealing with, the Portland Police Bureau itself is the final nail in the coffin of that argument. In a public press release they made just two days ago, the PPB made it very clear that citizen press -is- indeed press.
“With the advent of livestreaming and social media, there are many more independent journalists in the field, in additional to traditional newspaper and TV reporters.”
With all of these pieces of information put together, I really can’t see how there’s any argument that those of us out there -are- press.
The issue with the Portland Police
Even if you ignore the current climate associated with the BLM movement and attempts to address the inherent systemic racism in the system, there are still many concerns with what is happening right now, and I did more work to try to get details. And I did find a few useful tidbits. the PPB’s Directives Manual is freely available online, and the two policies that I did the deepest dive on were 0631.35 and 0635.10. At the time of writing, both are ‘under review’, and likely for good reason. Ideally, all the policies should be under review at this point.
This is a fairly generic policy about how the police are supposed to interact with media, with such things as 2.4 (Members will not prevent members of the news media from broadcasting […] if they have lawful right to be at the location), but section 3.1 is the one that particularly interests me.
At the scene of a major incident, press/media access may be restricted on scene or in airspace above until the member in charge or their designee(s) gives permission. Admittance to a crime scene on public property may also be limited if press/media presence would unreasonably obstruct or interfere with the investigation (e.g., gathering evidence, interviewing witnesses and victims, etc.), hamper the carrying out of police duties (e.g., handling an emergency situation), or jeopardize the safety of any person.
Of course, this policy is not written to address the kinds of situations that come up like dealing with spontaneous protests, but it does give some guidelines. Essentially, if the area is of active risk to police work, there should be a place for press to be able to be placed where they can do their jobs while not interfering with the police’s job. It’s logical to follow (and we will dive deeper soon) that as soon as the scene is ‘safe’, that press be allowed back in. Section 3.4 reinforces the idea as well:
In hazardous areas members of the press/media may enter at their own risk, after a reasonable level of order or control has been established, and with the approval of the member in charge or their designee(s). At the scene of an emergency operation (e.g., fire, hostage situation, explosion, cave-in, etc.), members may deny or limit access to members of the press/media if their presence creates an unsafe situation for themselves or others.
Here is when things get a little dicey. Of course, these protests almost always start with civil disobedience (violating noise ordinances, blocking the street, non-violent protest), but at some point, someone is prone to do things that I personally would call stupid. Setting off fireworks, throwing rocks, things that do cause risk to life and limb. The question of where that line is is subjective, and I’m not even going to address it here. But when that happens, the police, of course, have a policy for that. The basic rules are listed in section 4.2 for spontaneous demonstrations, which more often than not are the ones that end up being called ‘unlawful’. Section 8 addresses communicating with the crowd, generally using Twitter and a loudspeaker or the L-RAD (Long-Range Acoustic Device).
Section 9 addresses the approval process for using items such as tear gas, flashbangs, and rubber bullets. Surprisingly, this -still- isn’t the point that I’m interested in. Section 11 is where things start getting close. Section 11.1 details, in addition to other things:
Members may be justified in detaining individuals engaged in civil disturbance after providing a lawful order to disperse followed by a reasonable opportunity to comply with that order.
Section 12.4 is where things really start to heat up, though. It states:
Media or legal observers will not be arrested solely for their role in observing, capturing, and/or reporting on demonstrations or events. Members will not interfere with media or legal observers performing their respective functions, so long as they are performed in a safe manner and in compliance with police orders. However, such persons must comply with all police orders and maybe subject to arrest for failure to do so.
This is where things start getting interesting. The press is allowed to do their duty, as long as they are ‘in compliance with police orders’. But what ‘police orders’ are they not in compliance with? Usually orders to vacate a specific area. Let me use the protest that was declared unlawful the night of 14 Jun, 2020 as an example. Police were arresting a tresspasser on Justice Center property when someone allegedly threw an incidiary device in the direction of police, and it exploded within feet of them. I can conceed that at that point, it was a significant risk of threat to police or civilians, and dispersal may well be appropriate. However, the incident was limited to only that one location, one block in the entire city. The police, in a Twitter post, stated:
SW Naito Pkwy to SW 10th Ave and SW Lincoln Street to SW Harvey Milk Street is closed
For those who are unfamiliar with Portland, Naito Parkway to 10th Ave is 10 blocks long, and Lincoln Street to SW Harvey Milk Street is about 19 blocks in length. Approximately one hundred ninety blocks of the city were closed off because of one person with a firework. Anyone, protester, media, or unrelated civilian is expected to leave that entire area immediately or risk being subject to use of force or arrest. Many people (rightly so, in my view) have viewed this as a very broad overreach of their powers. Additionally, section 5.3.2 of the very same policy states:
The Bureau shall de-escalate its response when it is safe and tactically feasible to do so.
Of course, ordinary citizens and individual press are not privy to their operation communications (they use encrypted channels, for obvious reasons), but simple logic says that once the immediate threat is addressed, the response is stopped. The city is opened up as much as possible, and remaining protesters are free to return. In actuality, we have seen police, for hours after, chasing protesters all over town to prevent them from regathering. In the last week, I have yet to actually see press releases announcing that an escalation has been released.
What this means to me
At the end of the day, this causes real concern that the police are attempting to clean large portions of the city out of anyone that can attempt to hold them accountable for their actions because of a lack of documentation. All of this in a world where many are already criticizing police for excessive brutality. If the press leaves and protesters don’t, it’s only barely hypothetical to imagine what the police may do to innocent people.
What are my rights?
Like so many have been saying for years, you have no obligation to talk to the police. The ACLU also has a very good list of additional rights and tips. Remember that Oregon is a single party recording state, so you don’t need anyone’s permission to record audio. They may not demand access to your photographs and video without a warrant, and they may not delete your data (if they abide from that or not, sadly, is another issue). To help protect your data, it’s recommended to remove unneeded personal data from your phone and disable biometric access tools like fingeprint scanners and facial ID. Adding a password or pattern is also better than a pin often times as well. Recent Android phones add a Lockdown option to quickly disable biometrics, provided you can activate it before the police tackle you. A similar feature is available for Apple users as well
As always, you have a 5th Amendment right to not speak to the police. Even if you didn’t do anything. The police’s job is to arrest people. An ‘admission’ of something can be twisted to mean something unintended and make things harder for you. Get names and badge numbers. And I’m sure there are many legal organizations available to assist if needed.
We can get through this, if we all work together.