In the video, a line of police officers advances left-to-right across the screen. Behind the camera is Tara O’Neill, a newspaper reporter in Bridgeport, Connecticut.
For two years, O’Neill had covered the fallout from the fatal police shooting of fifteen-year-old Jayson Negron.
She chronicled the community backlash against the Bridgeport Police Department, including allegations of misconduct.
In May 2019, O’Neill covered a protest on the anniversary of Negron’s death.
When police attempted to disperse a group of demonstrators, O’Neill started to film on her phone.
In the video posted to Twitter, a police officer orders O’Neill to move as the camera pans toward the ground.
O’Neill says she is standing on a public sidewalk and identifies herself as a reporter.
The video cuts out. In the wake of this confrontation, O’Neill was arrested and taken to the Bridgeport police station; she was released without charges that night.
One of her editors speculated the arrest was “retaliation and intimidation” for her coverage.
That journalists like O’Neill might come into conflict with police should hardly be surprising. Since the Founding, prominent theorists—including the First Amendment’s author, James Madison—have touted the “checking value” of the press in exposing government abuse.
Predictably, newsgatherers sometimes become targets for state retaliation—a fact underscored by the widespread harassment of journalists at protests following the killing of George Floyd by Minneapolis police in May 2020.
Since 2017, more than 150 journalists have been arrested in the United States.
This statistic does not account for arrests of ordinary citizens, including in overpoliced communities, who document police activity using cell phone cameras.
Though the Fourth Amendment requires that police have probable cause to make an arrest,
this threshold is usually easy to meet.
And while professional and citizen journalists who are arrested often do not face charges, even “catch-and-release” detainments like O’Neill’s may prevent them from covering an event. In this sense, strategic or pretextual arrests of newsgatherers can function like prior restraints—a special class of restrictions that prevent the publication of speech on the basis of its content. Like prior restraints, arrests of journalists allow authorities to arbitrarily wield broad censorial power to suppress news before it reaches the marketplace of ideas.
A recent Supreme Court decision could make it more difficult for citizens exercising their First Amendment rights, including newsgatherers, to respond to pretextual arrests. In Nieves v. Bartlett, the Court held that, in most instances, the existence of probable cause for a crime will defeat as a matter of law a plaintiff’s First Amendment retaliatory arrest claim brought under 42 U.S.C. § 1983.
The Court created a “narrow” exception for cases involving atypical arrests—those in which officers “have probable cause to make arrests, but typically exercise their discretion not to do so.”
Nieves did not involve journalists or newsgathering.
Nonetheless, the ruling impairs the ability of professional and citizen reporters to bring federal civil claims that may help deter state suppression.
The decision also threatens to undermine recent circuit court decisions recognizing a right of citizens to film police and government activities in public.
Such a right may mean little if probable cause for any of an ever-expanding litany of criminal statutes will preclude a civil damages claim by those arrested while reporting on police activity.
This Note charts a path forward from Nieves to vindicate the rights of professional journalists and citizen video recorders subjected to suspected pretextual arrests.
Part I explores the First Amendment’s limited protections for newsgathering, as well as the recent judicial recognition of the right to film police. Part I also examines the special harms of retaliatory arrests for newsgatherers and argues that such arrests function like prior restraints when undertaken to prevent or delay the spread of news. Part II analyzes and critiques Nieves. It describes the challenges of proving improper animus in First Amendment retaliatory arrest cases and examines how those challenges informed the Court’s adoption of a no-probable-cause threshold. Finally, Part III proposes judicial and legislative solutions to better balance the First and Fourth Amendment interests at play in retaliatory arrest cases. In particular, it advances a commonsense reading of Nieves’s atypical arrest exception that would preserve the ability of courts to adjudicate certain speech-related retaliatory arrest claims where probable cause is present. It also argues that Nieves’s general no-probable-cause rule should not apply to retaliatory arrests of journalists and newsgatherers that act as prior restraints.
Nieves has troublesome implications for all citizens, including protestors, who attempt to exercise First Amendment rights under threat of police suppression.
The unique institutional role of newsgatherers,
however, makes them an especially salient group for examining Nieves’s potentially broad consequences. Professional and citizen journalists who fulfill the First Amendment’s “checking value”
arguably face a higher risk of government retaliation, since it may be in the state’s interest to silence criticism.
Moreover, arrests of newsgatherers not only deprive individuals of their liberty but also infringe on the public’s interest in learning about the conduct of police and public officials.
Thus, while retaliatory arrests purportedly punish past acts, detainments of newsgatherers may actually serve as a pretext to thwart future speech—the dissemination of news.
Courts applying Nieves must have the flexibility to guard against state information-suppression efforts long considered anathema to First Amendment law.