← The Lawfare Podcast
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- [00:01]
Podcast Host
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Caroline Cornett
I'm Caroline Cornett, intern at Lawfare, with an episode from the Lawfare archive for June 14, 2025 Last weekend, Mass protests took place in Los Angeles following immigration raids across the city. Law enforcement clashed with protesters and police fired non lethal ammunition at journalists reporting on the demonstrations, striking several. Additionally, more than 20 other reporters reportedly faced assault or obstruction while covering the protests. For today's Archive episode, I selected an episode from June 21, 2023 in which Tyler McBrien sat down with Joel Simon and Katie Glenn Bass to discuss their report covering democracy protests, the Police and the Press, which studied attacks on journalists covering social justice movements in 2020. They talked about the long legacy of law enforcement attacks on the press, what can be done to better ensure press freedom, and more.
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Tyler McBrien
I'm Tyler McBrie, managing editor of Lawfare and this is the Lawfare Podcast. June 21, 2023 Carolyn Cole, a Pulitzer Prize winning staff photographer for the Los Angeles Times, has covered wars and other conflicts in Afghanistan, Iraq, Israel, Kosovo, Liberia, Sudan, Nicaragua, Haiti and the US Mexico border. Over the course of her 30 year career, she has been seriously injured on the job precisely once when members of the Minnesota State Patrol pushed her over a retaining wall and pepper sprayed her so badly that her eyes were swollen shut. Cole was in Minneapolis in the summer of 2020 to cover the protests after the murder of George Floyd. She was wearing a flak jacket marked tv, a helmet, and carried press credentials at the Time of her attack. Cole's story is not unique among the press corps. According to a new report out this week from the Knight First Amendment Institute called Covering Protests, the Police, and The Press. In 2020, at least 129 journalists were arrested while covering social justice protests, and more than 400 suffered physical attacks, 80% of them at the hands of law enforcement. As Joel Simon, author of the report and former executive director of the Committee to Protect Journalists, writes, the presence of the media is essential to dissent. It is the oxygen that gives protests life. Media coverage is one of the primary mechanisms by which protesters, grievances and demands reach the broader public. I sat down with Joel, as well as Katie Glenn Bass, the research director of the Knight First Amendment Institute, to discuss the report. The long legacy of law enforcement attacks on journalists covering protests in America. Who counts as the press in the eyes of the court? And what can be done to better ensure press freedom. It's the Lawfare podcast, June 21. Protests, the police, and the Press.
- [04:32]
Podcast Host
So the Knight Institute has just released its new report called Covering Democracy, Protests, Police, and the Press. Joel, I'd love to start with you as the report's author. If you could just set up the report for the listeners from a sort of very high level view before we dive into the particulars. And also if you could, to give a bit about the origin behind this report. You know, why. Why write this report and why now?
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Katie Glenn Bass
Yeah, well, absolutely. And it has a very specific origin story, which is for 20. I spent 25 years at the Committee to Protect Journalists, 15 as executive director. And as it was preparing to step down and think about the next thing, I had a conversation with Jamil Jaffer, who's the executive director of the Knight Institute. And he invited me to join the Knight Institute as a research fellow. And he specifically said to me, the Knight Institute is domestically focused. We're focused on defending First Amendment rights in the digital age. What do you see, based on your experience at the community, to protect journalists as the most essential threat to press freedom in the United States? And I thought about that for a while, and I talked to a lot of experts and I talked to journalists I knew. And I went back to Jamil and I said, you know, maybe it's not what you might think. Maybe it's not the focus that we've had on, you know, legal rights and fighting subpoenas and platform policy. You know, if you talk to journalists around the country in their own communities, the primary threat they face is the challenge of covering protests. And it's Everywhere, and it's pervasive. And we had a new source of data which helped us really understand the scope of the threat, which is something called the US Press Freedom Tracker, which we had created in 2017. And so we had this rich resource of documentation that allowed us to understand the full scope of the issue. And so that was the origin. And I dove into the project and, you know, spend a year talking to journalists, talking to experts, talking to First Amendment scholars, looking at the data, and this report represents our conclusions.
- [06:48]
Podcast Host
Yeah. And, Katie, as you well know, the Knight Institute's mission is protecting press freedom in the digital age. But much of what is described here happens in the physical realm. I'm curious if you could describe, you know, the nature of attacks on journalists that are talked about in the report, what's being done to them over the past few years and by whom.
- [07:10]
Katie Glenn Bass
Sure. So I think what the findings in the report show is that there are a couple of main categories of difficulties journalists are facing at protests. The most notable, which I think the report reflects, is that journalists are quite often, surprisingly often, targeted for attack by police officers during public protests. There are a number of incidents in the report and many more cataloged in the Press Freedom Tracker, where journalists who are clearly identifying viable as journalists are targeted with less lethal munitions or physically pushed by police, or their work is interfered with by a police officer while they're clearly in the act of recording a news gathering. So that's one category. And then there's a separate category, which is, you know, as we've seen over the years, policing at protests has gotten more aggressive in a lot of ways, both in terms of the use of the. Of less lethal munitions and crowd control measures, but also the kinds of tactics used for arrests. One thing the report talks about is the practice of kettling, where police will just block off a broad area, and everybody in that area, even if it's several hundred people, is detained. And often everybody gets arrested and goes down to the station, and journalists get caught up in those kettles for hours on end and sometimes go down to the station and are arrested as well. So that's the second category, is journalists who are being caught up in these broader policing tactics that we think are unwise. And then there's also the report, I think, spends less time on this. But a number of journalists have noted that protesters, some protesters at least, are less happy to see journalists than they used to be. It used to be the case that most journalists welcomed the presence of the media as a way to get their message out And I think now some journalists are observing that, you know, if not all protesters, some of them feel like the media is not necessarily going to be helpful to them, either because they can do that documentation on their own or because they don't trust the media. And that makes journalists job more difficult in a lot of different ways.
- [09:04]
And Tyler, if I could just jump in on kind of the question you asked about what the intersection is between the digital and the physical realm. I mean, some of the changes that Katie described are a result of the transformation of the information landscape. I mean, the reason that protesters welcomed journalists is because they were the primary means through which they could communicate their demands to a mass audience. And they understood that the presence of journalists was often helped protect them against abuse by the police, which obviously is a historic challenge. So, you know, the physical landscape has been transformed by changes in the digital landscape. And the second area in which this has also manifested is, you know, and I did. I spent some time on this in the report. And it's a. It's a. It's a somewhat complicated issue. But the police are also, you know, also claim, and the journalists confirmed that the kind of normative relationship, the relationship between police and journalists, that was a kind of institutional relationship based on a kind of understanding of their. Of their particular functions that's really broken down for a whole variety of reasons. But one thing that you hear, you know, a refrain from the police is, you know, we can't tell who's a journalist when everyone has a cell phone and is documented what we're doing. So the kind of normative structure where we had, okay, you're a journalist, we treat you in a certain way. You're a protester, we treat you in a different way. That's broken down. And so part of what the report examines is how do we rebuild a kind of legal and normative structure that allows journalists to play this essential role in an environment in which the physical realm has been transformed by the kind of digital revolution.
- [10:55]
Podcast Host
Yeah, there are so many threads there that you just mentioned that I would love to follow. But first I want to go back to the focus of the report, in protests, in protest coverage. I want to just tease out a bit more of why that focus, why it's so important to protect press freedom, specifically in the coverage of protests. I think there's a dark irony at play here that you capture so well in the report when you write, quote, it is precisely at the times when the right to assembly is being suppressed that the right to press freedom must be most scrupulously. Protected. Could you speak, Joel, a bit more about this focus on especially protest coverage?
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Katie Glenn Bass
Yeah, I mean, I think my perspective is global. I mean, I ran the Committee to Protect Journalists, so I saw these issues play out in every country around the world. And street protest and assembly and the speech that accompanies protest is one of the most essential safeguards that exist in any society. And people around the world assert this right at tremendous risk to their physical integrity. And so in the United States, these rights are protected by the First Amendment, and the press plays a critical role in ensuring that the broader First Amendment protections are observed. They play a role by, as I mentioned, communicating the demands of the protesters to the broader public, ensuring that it is part of the political debate. And they play an essential role in ensuring that the actions taken by public authorities to preserve public order are compatible with the fundamental rights guaranteed in the First Amendment. So if you don't have the presence of journalists or people who serve a journalistic function at a public demonstration, then the rights that are being asserted are weakened. And so, you know, it's all a big. They're all connected. And I think when you see the rights of journalists being restricted, it undermines the broader First Amendment protections that are at the heart of democracy.
- [13:11]
Podcast Host
Yeah. And before we go any further, it occurs to me that, you know, it might be good to define who is the pressure. Katie, you mentioned some of the tactics used against journalists documented in the report, like kettling. But of course, these tactics are also used against protesters, for example. So, you know, in these situations, who counts as the press? And then, as in a sort of addendum, does it really matter who's press and who's protester when it comes to the rights that, you know, each party has during a protest?
- [13:44]
Katie Glenn Bass
Yeah. This is one of the most important questions that the report addresses. So to begin with, I would say in most contexts, during a protest, while a protest is ongoing, protesters and journalists, anybody who is there, have the same First Amendment rights. They have the right to be there. They have the right to assemble and to peaceably express their grievances. Everybody also has the right to record, which is a really important First Amendment right that attaches to everyone, not only to journalists. Again, leaving aside for a moment the question of who is a journalist, a number of appellate courts have weighed in on this, and they've all said it's absolutely First Amendment protected activity to record police activity in public. Everybody has that right. The one place when trying to distinguish journalists from protesters or bystanders becomes really critical is in the context where a protest has been declared unlawful and people have been ordered to disperse, or where a curfew order has come into place and also entails people needing to disperse. And in that case, the report argues that journalists should be permitted to remain on the scene, and often they are in the dispersal order. In the curfew order, they will specifically exempt journalists from having to comply. But even where they don't, as a matter of policy, journalists should be allowed to remain so that they can document police activity in that time when they're trying to get people to leave. And in that situation, it does become important to offer some tools and offer some common sense approaches to determining who counts as a journalist in those circumstances.
- [15:18]
I mean, I think what's really important here is just what a kind of common sense approach is required in these circumstances, because it is true that journalism has changed and the nature of the profession has changed, and who's exercising journalism in what capacity, that's changed as well. So really, what we're asking the police to do when they have to make these distinctions is to apply a kind of functional test, which is who's engaging in journalism? How do you determine who's engaging in journalism? Well, do they have a press pass? Do they have distinctive clothing? Are they holding a large camera? Are they saying they are a journalist? Are they standing aside from the protesters and documenting what's happening? All of these behaviors are indicative of journalism, and the police should consider them. And where there's doubt, because there are First Amendment rights that are implicated, they should presume that someone who affirms that they are a journalist is in fact a journalist and should allow them to continue to exercise this role. And we think that the police often claim that this is an impossible task to differentiate between journalists and others who may be present in these situations. We don't believe that's the case, and we think that this is a workable, common sense approach to addressing this very important issue.
- [16:51]
Podcast Host
Yeah, just to follow up on that last point of this common sort of police refrain, that difficulty in distinguishing between the press and protesters. Could you speak a little bit more about why you think that doesn't quite hold water? And specifically, you mentioned in your report, an opinion written by Judge Wright in Minnesota that speaks to this very point. So if you could just kind of tease out a bit more, you know, why that argument often doesn't really hold up.
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Katie Glenn Bass
Yeah, I mean, I think that one of the things you hear the police affirm is they say that the protesters are out there and they're pretending to be journalists, and they're engaged, you know, in illegal conduct, and they're. They're. They're evading arrest by asserting that they're engaged in journalism. Police often make this claim. And I spent a lot of time trying to find examples of this kind of behavior, and I couldn't. I really found almost none. I found a couple of examples in a protest in Portland where some people who were, you know, clearly engaged in vandalism had, you know, taken duct tape and put press on their helmets. And it was. Would have been easy for the police in these instances to understand that these were not journalists. So it can happen, but it happens very rarely. What the. What actually happens at protests is that people who, you know, claim to be journalists are visibly engaged in journalism, are actually doing journalism, and should be allowed to do so. And what's interesting is when the courts have tried to address this or when it's been addressed in a legislative context, this very question, who is a journalist and who is not a journalist? You mentioned the case in Minneapolis, Goyet versus City of Minneapolis, that was actually resolved through a settlement. And there was another case that took place in federal court in Oregon, Index Newspapers versus Oregon. And. And there was also an effort to developed legislation in California that specifically addressed this issue of the journalists and the presence of protests. In all three of these instances, they came to the same conclusion. When you try to figure out who's a journalist and who is not a journalist in these contexts, you need to use a functional test, and the police need to apply a totality of the circumstances. And that police, when they engage in this exercise in good faith, have a high record of success. And so that's really the framework that we have. Have to apply moving forward if we want to protect these rights.
- [19:38]
Just to build on what Joel just said, I think one thing that's important to note is that everybody, you know, the report author, everybody involved in these questions, the judges all agree that if someone claims to be press but is violating the law at a protest, police can take action against that person. They can arrest them, they can tell them to stop. You know, they. They're still within their rights to do that. No one is arguing that if someone claims to be pressing, they are therefore untouchable. But as Joel was saying, you know, he spent a lot of time trying to find examples where this was happening, where police were having difficulty determining who was a journalist or people were claiming to be journalists but were not, in fact. And there was not. There's just not a lot of evidence out there. And the judges, both in the Minneapolis case and in the Index Newspapers case out of Portland, you know, made specific note of that in their opinions. And, you know, the. The case you were referencing, Tyler Judge Wright in the Minnesota case, noted in her opin that rather than an inability to identify members of the press, the record reflects many instances of law enforcement officers willfully disregarding the relevant identifiers. This demonstrates a problem of compliance, not a problem of clarity. And in the Index Newspapers case, the judge in that case also said, you know, there's. There's some information in the record that suggests that some people had marked themselves as press, and it was not clear that they actually were. But there is not a lot of evidence that those people were engaging in unlawful behavior. What you do see is a lot of targeted actions taken against people who are clearly identifiable as journalists.
- [21:10]
Podcast Host
Yeah. Thank you for that. And I would also encourage listeners to go toward the end of the report when there's a full list of recommendations to journalists, to police departments, to the Justice Department and so forth. But first, I wanted to get a bit of historical context. So I think one thing that the report does so well is to put this in perspective of the relationship between the press and the police, going back to the civil rights movement. For example, one of the chapters is called From Little Rock to Ferguson. So, Joel, I wonder if you could talk about this relationship historically, from that period. Has it ever been a good or respectful relationship? And how might this trend have changed in recent years? I think you've attributed a few things to maybe an uptick in violations of press freedom, but what do you attribute those changes to?
- [22:00]
Katie Glenn Bass
So, yeah, I mean, when I started this project, I was aware of a seminal book that had been written by Gene Roberts, the former Philadelphia Inquirer editor, New York Times editor, and Hank Klibanoff called the Race Beat that documented the experience of journalists who covered civil rights protests in the South. And when I read that book many years ago, again in my CPJ role, I was just struck by how much a part of our recent history, the same kinds of challenges that journalists face frequently in authoritarian countries were being faced by journalists covering the civil rights movement in the south, the United States. These included targeted attacks carried out by police. It included attacks carried out by protesters and counter protesters who supported segregation. And they were exceedingly violent, these attacks, and they were systematic. So it was clear to me that, you know, this was a historic challenge. The challenge that we, you know, are. We're focused on in the report and that we saw it recur you know, in many instances, including Ferguson. Katie actually did an excellent report a number of years ago looking at incidents that occurred in Ferguson, Missouri, when protests broke out there in relation to the Occupy movement. And my conclusion, looking at the historical record was, and you also talk to journalists who have worked covered protests over many years, and they'll describe interactions with the police which were quite cordial. They'll say, well, the police understood our role. They, they knew us because maybe we were covering communities that we were a part of and we were regular police reporters. So they knew who we were, they had relationships with the news organizations we work for and they allowed us to do our job. And they, you know, cut, you know, they gave us the room we needed to do it, even, perhaps even led us behind police lines when the skirmish line, when they were, you know, using crowd control measures. So I heard a lot of stories like that as well. But basically what it comes down to is these, the ways in which journalists cover protests, really, they operated at the discretion of the police. And if the police had an institutional relationship with local media or they felt in a particular context that they would allow the media to cover protests, then they could. And that happened pretty frequently. And when the institutional relationship broke down and the social relationships broke down, there was often widespread and systematic violence directed against the, the press that interfered with their ability to cover protests. And the reason for this and the focus of the report is that the law itself was unsettled. We think that journalists have covered protests throughout recent American history because of strong constitutional protections, but in reality it was because of the normative relationship between the police and the press in many of these communities. And as I described, those relationships have broken down because of the transformation of the environment, the lack of local media that in many of these communities, so there isn't a pre existing relationship, the growing, you know, hostility and more sometimes by the protesters towards the police, more aggressive crowd control measures, and, you know, a sense in the media that the police, which were once an authoritative source or in some segments of the media, are no longer perceived that way. And a sense on the part of the police that the media, which they felt once covered them fairly, no longer does so and no longer represents their perspective. So there are a whole variety of factors. You throw the Black Lives matter protests in 2020 into the mix, you throw Trump's inflammatory rhetoric into the mix, and you have the explosive situation we saw throughout 2020 when 129 journalists were arrested or detained throughout the United States while covering those protests, and hundreds were attacked and 80% of those attacks, according to the data compiled by the Press Freedom Tracker, were attributable to the police.
- [26:24]
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- [30:51]
Podcast Host
Yeah, and I think one episode described in the report that illustrates especially how inflammatory rhetoric, perhaps from the president at that time, being former President Trump, can have this sort of ripple effect down to these local departments and their interaction with reporters on the ground. In the Minneapolis case, the report tells the story of Mike Shum, who mentioned that right after President Trump had tweeted about standing with the military and telling Governor Tim Waltz that the military is on the way. That that was the point that Shum felt that things had changed on the ground and that that, quote, law enforcement turned on the media. Could you speak a bit, a bit about Mike Shum and his experience and how this connection between rhetoric from the top, sowing distrust in the media could then have real consequences on the ground. Katie, we can turn back to you.
- [31:45]
Katie Glenn Bass
In terms of rhetoric and its impact on the ground. I think what Joel said a moment ago really sets it up. You have this extremely volatile mix of people who are justifiably very angry and who are out on the streets protesting. You have a president who has been systematically vilifying the media, expressing support for the police and military, talking about deploying the military on the streets. I think there was also a famous tweet about when the looting starts, the Shooting starts making the situation worse. And then you have the situation on the ground where you have police coming out in very heavy, heavy riot gear, you know, with armored vehicles behind them, setting up a situation that seems very confrontational and very threatening and very angry. And I think that that just creates a very dangerous, intense situation that makes it hard for anyone to engage in any sort of dialogue or de. Escalatory tactics.
- [32:41]
Yeah. And I just, you know, to just add to that, I mean, I think that was absolutely the dynamic that, you know, Mike Shum, who was really one of the first journalists on the scene after the George Floyd murder, you know, or national journalist on the scene in any case, because he happened to be in the Twin Cities working on another assignment. And he, you know, and he, when he first sort of got out there and started documenting the response to the murder, the Floyd murder, he told me that his primary concern were the protesters themselves, who were, who were understandably extremely upset. Upset and agitated and angry and, you know, didn't necessarily appreciate the presence of, you know, somebody trying to film them. And he, you know, he had some confrontations. He was concerned about his safety and he wasn't that concerned about the police. And then that dynamic shifted over the course of the next couple days. It shifted because the crowds grew and the police, you know, felt besieged. And then there was a police precinct was. Was overrun and burned. And so, you know, the police, them felt under threat. And then, you know, at a point in which, you know, it would have been possible perhaps to dial down the rhetoric and try and de. Escalate, that, of course, is when Trump jumped in and put a lot of pressure on local authorities to take a more aggressive response. And then that was reflected in the dynamic on the streets where you saw basically whatever, you know, in Minnesota called the State Patrol. They're, you know, like state troopers that were called in and they used a much more aggressive strategy, much more aggressive crowd control measures. That's when we saw Omar Jimenez being arrested on live television. Mike Shum and other journalists I spoke with said the dynamic really changed quickly. They documented instances in which they were targeted by the police deliberately. There was a very dramatic incident the following day in which a police line imposing a curfew overran a group of about 20 journalists, some of the most prominent, some of many of them had covered international conflicts from around the world. They had cameras and press passes and were highly visible, were standing apart, and yet they were assaulted and many of them badly injured. And from that point on, the climate, in terms of the ability even as the police were deploying massive force against protests and imposing a curfew. You know, the ability of journalists to document their actions at a time, again, when there is very little accountability and oversight was deeply compromised by these kinds.
- [35:26]
Podcast Host
Of aggressive tactics, as you chronicle well in the report. Since at least the civil rights movement, these instances of violations of press freedom, journalists often don't take that sitting down, so to speak. They've filed suits, they've taken legal action, often with success, you know, leading to greater press protections, greater protections of freedom of speech. And 2020 since then has been no different. I think you cite in the US Press Freedom Tracker that at least 50 civil cases have been brought by journalists since the 2020 protests. Katie, could you talk a bit about some of these more significant ones that have, you know, either been been settled. And what the upshot is, we mentioned so far Goyet versus the city of Minneapolis, we mentioned Index Newspapers. Could you give a bit more context about these cases and what has sort of occurred since then?
- [36:18]
Katie Glenn Bass
Sure. So, I mean, both of those cases, Goyed and Index Newspapers, were class action lawsuits in which the aclu, I believe, was the plaintiff attorneys filing on behalf of a large group of journalists, including freelancers, and in some cases, also legal observers who play a slightly different role at protests. But going to a judge asking for a temporary restraining order and then later a preliminary injunction against the police who were operating at protest, saying, please, you know, tell them they have to stop attacking us. They have to stop interfering with our ability to do our job. And in both cases, they got favorable responses from the judge and they preliminary injunctions were put into place, although not always followed to the letter. And then what happened later on is that the cases go to a settlement where there is a more permanent agreement hammered out. It's usually called a monitored injunction, where the police representatives say, okay, we, we will do the following. And the plaintiffs, the class that is bringing the action, says that we will, you know, we'll agree by these terms, and then they sign the agreement. And that is supposed to be sort of the, the rule going forward when these protests continue, although you can go back to the court if you feel that one party is not complying going forward. So one thing I would note about sort of the process you just noted there, where journalists file suit and then get a favorable order and have some success. That's true. It is true that generally journalists prevail in these cases because the First Amendment rights are pretty clearly established and the police conduct is often fairly egregious. But I Just want to underscore that this is such a stupid and inefficient and really expensive way to deal with this problem. When training the police more adequately and ensuring accountability for police who refuse to respect the First Amendment rights of protesters would be a more efficient way to go about this for journalists, you know, you have to be able to participate in a lawsuit. If you have a newsroom backing you, that's easier. If you're a freelancer, that may be much more of a challenge. And then, you know, you have to go through this whole court process and hopefully the ACLU or a similar nonprofit organization can back you up there. But it's a long and expensive and quite grueling process in some cases. And then at the end of it, you know, you have a settlement and you have to keep going back to the judge. If the police are not complying with that settlement, then you have sort of on the other end of the tunnel, like after a protest movement or situation or period of protest has calmed down, you often see a fresh wave of lawsuits against the police, against the city, for violations of protesters and journalists rights during the protest. And those are often also successful. They settle for tens of thousands, hundreds of thousands, sometimes over a million dollars, which is taxpayer money that goes to pay for these civil rights violations. And so in, in a sense, you could say the system works because the judiciary is standing up for our rights. But in another sense, you could say this is really an absurd way to handle this problem. There's, you know, there's got to be a better way to address this.
- [39:26]
Podcast Host
Joel, did you want to add anything about these, these cases?
- [39:29]
Katie Glenn Bass
Yeah, I did. I mean, I fully agree with Katie. And by the way, I misidentified the Index case, it's Index v. City of Portland, earlier on. But I fully agree. I mean, despite the successes, you know, when you talk to the journalists themselves who pursued these kinds of cases, many of them express frustration. They express frustration about how long they take. They express frustration that they, you know, maybe they get a little, some sort of compensation, but they don't see any structural change. The one thing I will say that came out of the Goyet settlement was mandated training for the Minnesota State Patrol. And one of the people who has been contracted to carry out that training is the general counsel for the National Press Photographers association, somebody named Misty Mickey Osterreicher, who I quote extensively in the report, and it's been a leader in this area. And I talked to him about, you know, how the, how that training has gone. And you Know, he, he's, he's one who's, you know, his job is to defend photographers. He's a journalist himself. He's also a deputy sheriff in the Erie County Buffalo, where he lives. So he understands the perspective of law enforcement, but he's really going in there with a strong First Amendment perspective. And he told me something that I found a bit surprising given the context that we've just provided, which is that he found that the rank and file officers who he was training, despite their conduct during the protests, were quite receptive to this framing. And he emerged feeling that it was productive and positive. And yet he's really struggled to find other police departments that will engage him. And I think this really makes the point that widespread training, widespread investment in ensuring that these First Amendment principles are taught and police academies are reinforced through regular training with police departments throughout the country potentially could have a meaningful impact. It's certainly worth trying, and it is a lot less expensive and potentially more productive than allowing these situations to be resolved to the extent that they are through litigation.
- [41:54]
Podcast Host
Let's talk about a hypothetical here. If these sorts of attacks on the press covering protests continue to happen, what sort of effect might that have on journalists, on the press as a whole, and even civil discourse and accountability? Katie, we can go back to you for this one.
- [42:11]
Katie Glenn Bass
Sure. I mean, I, I regret to say it, but I do think we'll see more of these attacks given the historical context that we've gone into before. One thing that I worry about a lot that is borne out in the interviews that Joel did with journalists for this is that journalists may become more reluctant to cover public protests. On the whole, journalists are a very brave lot, and they don't expect to be treated with kid gloves when they're out there on the scene covering a protest. But, you know, there's, there's a big difference between accepting that something may happen to you while you're doing your job because you're, incidentally, you know, you're caught up in something that you weren't expecting, and having to go out into a scene where, you know, you may be targeted by police because of what you're doing, because you have a camera, because you have a press pass or clothing marking you as press. Those are different propositions. Those are, those are different risk factors. And I do worry that journalists might become reluctant in some cases to cover these protests. And, you know, as we've discussed, press coverage of protests is really crucial, both for helping amplify the voices of protesters and their demands, but also for documenting the behavior of the people who are policing the protests. You know, it's recordings have been pretty essential to most of the conversations we've been having about police accountability, police reform, excessive force, things like that. You really, you want documentation of what's going on, on the scene. So they, they play an essential role there.
- [43:46]
Podcast Host
Joel, I want to turn back to you for some of the recommendations or proposed solutions. We've already mentioned this requiring or recommending police adopt this presumption of journalism when interacting with potential members of the press during protests. You mentioned earlier deepening engagement between local journalists and local police departments. What are some other solutions or recommendations you've included in the report? And you know, on the, on the flip side of that, what are, what are some limitations? I think there's some discussion about the limitations and merits of press credentialing, for example.
- [44:20]
Katie Glenn Bass
Yeah, I think that's a, that's a really good place to start. I mean, I think the reason that we're really leaning into this functional test and the presumption of journalism standard, which I think is really the primary recommendation that emerges, certainly from my experience, the one that I think would have the most potentially transformative effect. And just to reiterate Katie's point about what's at stake is, what's at stake here is the, the integrity of American democracy. I mean, I don't want to be grandiose, but these are First Amendment rights that are at play here. And so the ability of journalists to carry out their function in this context is, as we've already discussed, critical to the full exercise and enjoyment of the broader First Amendment protections that are at the heart of American democracy. So we're not fooling around here. There's a lot in play. And the credentialing process kind of reflects the kind of previous structures that I discussed in which the police really got to choose. You know, you're a journalist and you're not a journalist. You're entitled to certain considerations, and you are not based on criteria that the police themselves apply. And you know, again, that I don't think it worked perfectly, but it worked adequately in an environment in which, you know, journalism was represented by strong institutions, and there, there were relationships between the police and these, these media institutions, and that's just not the, the structure of the media today. So, you know, we, there's actually some academic research that indicates that very few police departments in the country are still using credentialing because, you know, they struggle applying this outdated model to, to make appropriate judgments about who's entitled to these credentials. And so they moved away from it. And journalists themselves are uncomfortable in many instances with the police making these determinations. And by the way, many journalists are quite comfortable wearing credentials. They just don't want those credentials necessarily to be provided by the police. So I really think that that's really at the heart of what we're trying to, trying to do in this report is come up with a framework for redefining this relationship that is about the way the police, the media and protesters interact in the physical space, but is a reflection of the new, of the kind of the way information, the information environment has been transformed by technology and the way the media and journalists themselves and those being covered by the media, engagement with each other. And I think that's really the kind of most essential step that we can take to protect these rights. And I want to say Katie was one of the people involved in developing, along with other people at the Knight Institute, and the full recommendations that can, I think, speak about some of the other recommendations that we put forward.
- [47:32]
Yeah, I'd be happy to. As noted, I think capstone recommendation here is this sort of common sense approach, presumption of journalism. If someone appears to be engaged in journalism based on observable evidence, like what they're wearing, what they're carrying, what they're doing at the protest, then assume they're a journalist and act accordingly. But we also tried to provide recommendations for a lot of the other stakeholders involved in this because I think there are helpful roles that a number of other institutions or individuals can play here. So, for example, news industry organizations or journalists, professional organ organizations can often be really great here. You know, they played a key role in the California law that was passed that's included in the report. And they can do a lot to, you know, offer training. They can offer training to police. They can also offer trainings to journalists who are covering protests to, you know, help them understand the shifting environment out there and ways to protect themselves. They can be the ones to operate credentialing processes so that if you want a credential, you can go get one, including if you're a freelancer, leaving it up to the journalist to decide what they want to do. Newsrooms, the leaders of newsrooms can do a lot of this stuff as well, sort of preparing their, their employees, their reporters, reaching out to police, offering credentials. And then there's. There's two other stakeholders I want to mention. One is state legislature. So one way to firm up some of the these protections is for state legislatures to codify some of these protections into law more specifically. So, you know, they could pass a law saying that police have to actively work to ensure that journalists can do their jobs at protests unhindered. They can follow California's example and codify into law journalists exemption from curfew orders or dispersal orders that are given at protests that, you know, formally allows them to remain on the scene after orders like that are put out. And then moving up to an even higher level, there's the Department of Justice, which sometimes opens what are called pattern of practice investigations into police departments where it seems like there is a consistent pattern of misconduct. And so we've encouraged them to include looking at mistreatment of journalists as part of those investigations and then publishing their findings there.
- [49:39]
Podcast Host
And I would love to give each of you both a final word before we wrap up here. So, Joel, I'll go to you first. You mentioned a bit a moment ago. But, but what do you hope to accomplish with this report? What do you hope readers will take away after going through it?
- [49:54]
Katie Glenn Bass
Yeah, I mean, the first thing is I think there's a real lack of awareness. And so fundamentally, I hope that there's a broader and more informed discussion about this historic challenge and a recognition that in a polarized political environment in which, you know, and in the beginning of an election season, this is going, we're going to see more protests and we're going to see a need to cover those protests. And so and we've already, you know, talked about the stakes here and they could not be higher. So that's the first thing. The second thing is, you know, when, for those who look at this problem, I observed a tendency at times, particularly the police, who, I don't always think when they raise these concerns, are doing so in good faith, you know, the notion that we can throw up our hands and say, well, this problem is just too difficult to solve, I don't think that's acceptable. I think that when, you know, courts have looked at this, they've said this is the First Amendment is implicated. There are First Amendment considerations here. And the police have an obligation to develop processes and protocols that ensure that these fundamental rights are protected and that journalists are able to do their job without facing arrest and violent attack. And the other thing that's clear is there is a framework, a workable framework that can help us at least advance a discussion about how to achieve this. So I think the two things that I really love people to come away with is one, this is a significant problem and two, it's a difficult situation. But There are solutions that we haven't tried, that there's evidence that they could be effective. And so let's prioritize the solutions and ensure that journalists are able to play this essential role.
- [52:05]
Podcast Host
And finally, Katie, back to you. What's your hope with this report?
- [52:09]
Katie Glenn Bass
Sure. I mean, similar to Joel, I would say one of the things that worries me most is that it has become so common for protests to see a violent response. It's become so common for journalists to be arrested or physically injured covering protests that I really worry it's becoming normalized that, you know, people see these, these scenes in this coverage and, you know, that's just what a protest is because that's the way it looks every time and it's really not normal and it really doesn't have to be that way. There are better ways to deal with these problems. There are common sense approaches that would help a lot. There are trainings that would help a lot. And there are police officers, both current and former, who are, who agree with that and who are able to provide the voices saying, look, yes, it's absolutely possible for police with adequate training to distinguish between protesters and journalists. It's absolutely possible to put these things into play. There are better sensible ways to handle this that would better protect the rights of protesters and the rights of journalists.
- [53:11]
Podcast Host
I think that note of possibility and promise is a good one to end on. The report is covering democracy protests, police and the press from the Knight First Amendment Institute. Katie and Joel, thank you so much for taking the time.
- [53:24]
Katie Glenn Bass
Thank you. Thanks for the great questions.
- [53:26]
Thank you so much for having us. Really enjoyed the conversation.
- [53:33]
Tyler McBrien
The lawfare podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at Patreon.com Lawfair. You'll also get access to special events and other content at available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for other shows including Rational Security, Chatter, Allies and the Aftermath. Our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work@lawfareblog.com the podcast is edited by Jen Patya Howell and your audio engineer. This episode was Kara Shillin of Goat Rodeo. Our music is performed by Sophia Yan. As always, thanks for listening.
- [54:11]
Podcast Host
Listening.
- [54:21]
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