Stephen Solomon Transcript — Oct. 9, 2025
Kevin Johnson/NPF (00:00:00):
In the past few days, we’ve heard myriad examples of how the current administration has exhibited a stunning disregard for the First Amendment. We are extremely fortunate that those abuses have not gone unnoticed. They’ve been meticulously cataloged by New York University’s First Amendment Watch. Steve Solomon, professor Steve Solomon oversees that great project at NYU, and when we were talking about the best use of time here and what he could provide, we came away with both sort of a dual mission here to talk about the First Amendment abuses that we’ve seen during this past 10 months of the administration. But also to provide you something to take back to your communities about what the First Amendment protects and what it does not as you cover the issues on the street, whether it be an ICE raid, a protest on the street, and you’re there recording, simply news gathering and what the First Amendment allows you to do in those circumstances.
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It’s extremely helpful to know, and it’s also extremely helpful for you to be able to communicate that to police, to federal authorities who should know what those protections are. But if you’re armed with that information, it makes that interaction all the better. So with that, I’d like to introduce Steve. He’s the Marjorie Deane professor of journalism at New York University where he teaches First Amendment law. As I mentioned, he’s the founding editor of First Amendment Watch, which covers current conflicts over freedom of expression and provides legal and historical context. He’s the author of “Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech.” He is currently working on a book called titled “A Republic of Rights” to be published by Bloomsbury Press in 2026. I have to again apologize for interfering on many of his deadlines as we discussed his presentation today. So apologies, Steve for intruding on your time. But the book will describe how the founders protected individual rights in America and built safeguards against the tyranny. With that, please welcome Steve and I also want to let you know that he’ll be taking questions as he goes along. So this is a more interactive session than previous ones. So as we go along, he’ll be asking you for your input and we’ll get you microphones as quickly as we can so that we’ll keep the session moving. But please welcome Steve.
Stephen Solomon/First Amendment Watch (00:03:32):
Kevin, thank you very much. It’s such a pleasure to be here. I teach two First Amendment law courses at NYU to aspiring journalists, and it’s wonderful to be here with people who are out there covering important news every day. And I think you’ll find today’s session really useful because it pertains to your interactions on the street with police officers. And that’s especially pertinent today with so many protests. It’s pertinent because you may be out there covering ICE agents of the federal government in your communities, and journalists do have First Amendment rights to gather the news, and it’s important to understand what those rates are and to be able to assert them when you are faced with a police officer. Keep in mind that over the last couple years with all these protests that have gone on and all the confrontations between protestors and police and journalists and police, there have been hundreds of journalists arrested.
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Most of them have been released without charges being filed, but it is a big concern. And so I hope that today’s session will help you kind of navigate some of those difficult waters in your community when you’re reporting. So the news gathering right, that we are going to talk about today is the recognized first amendment, right to make photos and videos of police officers or other government officials. Could be, it could be law enforcement officers of the federal government, for example, I mentioned ICE and to do that without interference by the police. But there are limitations to that and the limitations are very important to understand. And we’re going to be talking about that today. We’re going to come back to the First Amendment Watch website. You may find it helpful as well in the coming months.
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This is just a subject of our talk, and I’m going to show you a video about three minutes long to start off. But before I do that, since we’re talking about making recordings, this whole question goes back many, many years. You may recall in 1991, Rodney King in Los Angeles was stopped by the police and he was severely beaten. How do we know this? Well, there are police reports, but what was really dramatic life-changing was the fact that there was a bystander up in his apartment on a balcony. He went and he got a camcorder and he brought it to his balcony and he made a video of what was going on on the street.
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The camcorder he used was very large. I mean, it was something like this. It’s not something that he was not a journalist, but it’s not even something that a journalist would’ve carried around. I have one of those in my closet that I used to have from the nineties, and I used it to birthday parties for my kids, or I went to a soccer field and made video recordings and it was with a tape. So this was not the kind of technology that you would carry around in the street. I mean, nobody would, maybe there’d be a few broadcast journalists who would carry something like that with them to do interviews on the street, but otherwise you just didn’t have this available to make recordings in the street. Nor at that time was there the internet that would enable you to upload things immediately or even to livestream what was going on.
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So George Holiday, who was the bystander, not a journalist, just the bystander who recorded all of this, had to go to the local TV station, showed them the tape and hope that they would play the tape on their station, which they did. And I think we all know what happened after that. So this was all because someone made a tape. Now let’s fast forward to 2025 and changes everything. Now, anybody walking down the street, street, including all of us are potentially news gatherers. We don’t have to have a big camcorder anymore. They’re gone. But a lot of the videos that have been made over the last number of years of police confrontations with citizens in the street are by bystanders who happen to be walking down the street, maybe someone in a car who sees something going on and occasionally a journalist. There aren’t many of us, but there’s a lot of bystanders now everybody’s got a phone.
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And so these recordings are made and they’re the best possible evidence of what goes on with a public official police officer is a public official and citizens or non-citizens in the street that they encounter. And we know that it’s been evidence in many, many situations where the police have engaged in misconduct and the videos have well documented that. So with that in mind, there’s many confrontations where the police officers see someone using a cell phone to record and they approach the person and they say, stop. Can’t do that. And perhaps the bystander or the jury says, well, I don’t want to stop, and a police officer may arrest the person, arrest the journalist. This is what you’re going to see on the tape, the video that we’re going to show. We’re going to show that video and then we’re going to come back to it much later because, and in between we’re going to learn about the First Amendment right and what some of the limitations are.
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Then we’ll come back to it and ask the question, would the journalist win the case? Did she in this situation have a good First Amendment right to assert? So we will play the video. No. Oh, actually, before we do that, one second, what are you going to see is this is a journalist, not a bystander. Susan Green just happens upon a situation on a street in downtown Denver where a man is lying on the sidewalk and the police are trying to take care of him. They’re evidently doing a pretty good job. They’ve called an ambulance and so forth. So it’s not a confrontation situation, but she’s there and she wants to record it. She’s standing, as you’ll see, pretty far off, and the police officer you’ll see will approach her and he cites hipaa.
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Now, you may know the HIPAA law is a very powerful law that protects medical privacy, but who does it apply to? It applies to doctors, hospitals, other medical professionals, medical institutions that they can’t release medical information about you without your permission, it doesn’t apply to the police police. So right at the start, he gets it wrong, which happens. He’s not an expert on that in particulars, but this is what he says as a reason for denying her the right to make the video. So if we can play that now, it takes about three minutes. A bit of a warning. She’s treated a bit roughly, but this is the reality of confrontations. First part of it, you won’t hear anything, and then you will hear some voices a bit later. You can see her back there.
Speaker 3 (00:12:55):
It is protected by hipaa. You can’t record anything. Health Information, privacy and Protection Act. There’s this First Amendment. Have you heard of it? Well, it doesn’t supersede hipaa. It doesn’t supersede hipaa. Step away, hold on. Or you’ll be arrested for interference. Step away or be arrested for interference. Ow. Stand up straight. I act like a lady. Stand up and act like a lady. Are you fucking kidding me? Nope. They act like a lady.
Speaker 3 (00:13:27):
There you go. Now you can go to jail. There we go. Perfect. We’re going to go here to this car. No, come on, somebody take a photo. It’s being recorded. It’s being recorded. Stop. You’re hurting me. Well walk. Stop resisting. Stop resisting. Just relax your body. Walk. Yeah, just walk All you got to do, stop, bro. Stop trying to throw your weight. Now you’re going to sit in the car.
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Can you that, huh? What car are you? Yeah, yeah. What’s happening with He’s going to go to the hospital. Oh, there’s no Tokyo Joe’s around here. Yeah. 13th and Grant. I was going to call for our car, but then she started interjecting herself. What can we get another car to? I’ll go, here’s up there and see if I can find it. He says a blue shirt or blue cut off shorts and a blue shirt. Shorts. Have a green stripe. I think it was. Thanks. You want to call Sarge out? Yeah, we can do that. It’s on the east side.
Speaker 5 (00:15:28):
OK. This is the
Stephen Solomon/First Amendment Watch (00:15:41):
Thank you. OK. So we do have a First Amendment right to record police officers. And in fact, Susan Green was right. I’m not sure she could have persuaded this police officer that she was right. Although it is always advisable to tell the police officer that you have a First Amendment, and we can come back to it later about how you approach a police officer and have the best chance of staying there and not being arrested. But this is an issue that has never come up before the Supreme Court of the United States, but it has come up in eight US courts of appeals. And so the dark areas represent the parts of the country where federal appeals courts have recognized a First Amendment to record police officers and other public officials out in public. We talk about in public, not in private. OK, so we’re talk about public property and we’ll come back to that later.
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So in the areas that are not shaded in dark blue, those are the areas where the Federal Appeals Court has not yet decided the issue because it simply hasn’t come up. But every federal appeals court that has been asked about this issue has ruled in the same way that there is a First Amendment to record subject to limitations, which we’re going to talk about, but that’s the map. It’s likely that if you’re in an area, you’re reporting in an area that is where a decision has not been made, chances are if it comes up, the appeals court in that area will protect you because there’s so much precedent for it. It’s hard to imagine a federal appeals court now in one of the unshaded areas that would go against eight other US courts of appeals that have all ruled in the same way. So I think you can consider that you have a First Amendment rate no matter where you are, although technically you’re most protected in the areas that are shaded dark blue.
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So we start with the idea that you are reporting in what we call a public forum that’s distinguished most of all by the fact that it is public. You’re out in public. This is not private property. Private property you would recognize as someone’s lawn or whatever it happens to be, or maybe a private university. A lot of protests that have gone on in the last couple of years. So a private university that’s private property, just like a homeowner has private property. There’s a lot of state universities that are considered that’s public property because these universities are instrumentalities of the state, and so they have to conform to First Amendment limitations. Private landowners, including private universities, do not have to conform to the First Amendment. They often do. And we call that sort of the cultural understanding of the First Amendment because the ideas of the First Amendment and the values sort of permeate our society beyond those institutions that must obey the First Amendment. But the concept of a public forum is important. There are different kinds of public forums and they will go a long way to telling us what your rights are in any particular situation.
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Traditional public forms are, as you could see there, areas that have traditionally been open to public protests, demonstrations, the exchange of ideas, and these are street sidewalks and parks. I mean, this goes all the way back in American history to the founding period where people went out into the streets and into the public squares and they had liberty trees and liberty poles, and they gave speeches and they had rallies. And so the streets and sidewalks and parks owned by the public have traditionally been used for the purposes of political expression. And so those are the areas where your news gathering and your use of cameras are most protected, again, with limitations that we’ll get to, but they are most protected there. Any kind of political protests can go on in these areas, and the government is very limited in the rules it can impose to limit those protests.
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So a traditional public forum, now this kind of breaks it out into a table, the traditional public forum against street sidewalks and parks, there are limited or designated public forums. So this is not the street sidewalks and parks that have historically been dedicated to public expression. These are more like, let’s say, think of your city council meeting. So it’s a public space, it’s for public discussion, but it’s a designated forum where the government says, we’re going to hold a meeting and here are the subjects that are going to be covered. And you are free to it during the discussion period to get up and give your opinion about what you think of what’s going on.
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But you have to stay on subject. So the government designates the forum and the subject to be covered. And within that subject area, you have extensive First Amendment rights. But if you come in with protest signs, they can say, stop that. Go outside. So it’s a designated public forum and it’s been opened up for expressive activities, but in a limited way. Then there’s non-public forums, which are also government owned properties, but they’re not areas in which the government typically has let expressive conduct go on prisons, for example, military basis. So you can’t just go and carry out a process demonstration in the prison or a military base, nor if you’re a journalist can you just walk onto a military base and necessarily start reporting. The government can allow you to do that, but it’s a different situation than being out on a public sidewalk or street or park.
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So it’s much more limited. So they call it a non-public form public because again, it’s owned by the government, but it’s not as open as a street or a park for public protests and for news gathering. Now you see in the bottom level, you see some of the standards that courts must use when they look at these cases, strict scrutiny. In order for the government to limit speech or limit news gathering in a traditional public forum, they have to meet a compelling state interest. In doing so, that’s difficult to meet and it has to be narrowly tailored to achieve that interest. If you go all the way to the non-public forum, it’s a much lower barrier for the government to impose guidelines. It’s just a rational basis rather than a compelling need. And I think you have a question.
Sean Keenan | Atlanta Civic Circle (00:23:53):
My name’s Sean Keenan. I’m here from Atlanta.
Stephen Solomon/First Amendment Watch (00:23:55):
Yeah.
Sean Keenan | Atlanta Civic Circle (00:23:56):
Could you help us understand where designated free speech zones fall within the bounds of the First Amendment in Atlanta? We have Liberty Plaza outside the State House, but I think according to the First Amendment, you can also just protest on the steps of the State House at the school. I went to Georgia State, we had our free speech zone, I think they called it, but it was a public school, so technically you can still protest there as well. I know the government would love people to file permits before protesting, which today seems bizarre to me. Could you just help us understand where the boundaries are or how to legally establish the boundaries and recognize that
Stephen Solomon/First Amendment Watch (00:24:40):
Some of that we’ll cover later on because we’ll see. We’ll talk about time, place and matter restrictions where the government imposes some limitations on a college campus, like was Georgia State, you said, or in a public square. There are limitations that will help set the boundaries, but generally speaking, the public square is open for protest. Now, when you talk about getting a permit, there are spontaneous demonstrations that happen all the time, and typically that’s fine. Many municipalities require permits for large demonstrations because they may take up so much space and cause disruption that the authorities need to know ahead of time so they can have a police presence, which can also protect the protestors and demonstrators and direct traffic and make it a safe space. So there are all kinds of constitutional rules about permits so that the government can’t deny a permit, for example, because it disagrees with the viewpoints of the protestors. So one of the most fundamental principles of the First Amendment is that the government can’t favor or disfavor speech. So no decisions could be made by the government in terms of permits or any other restrictions based on either liking what the demonstrators are saying or disliking. So the First Amendment says the government has to be neutral, and if the government’s not neutral, that is typically a First Amendment violation. And that’s what the lawyers will argue, and that’s a often a quick victory for journalists or anybody who’s protesting.
Whitney McKnight | The Edge (00:26:39):
Hang on. Yesterday we heard from Thank you yesterday we heard from a former DOJ lawyer who had been in the first she’d been a civil rights lawyer among other departments. What she had said was there has been basically a scourge of First Amendment law experts from the DOJ, including prosecutors and das, or not prosecutors, sorry, das. What is your view on where that’s going to end up leading us? Is there going to be enough protection federally for First Amendment rights?
Stephen Solomon/First Amendment Watch (00:27:17):
So that seems like a broader question, right?
Whitney McKnight | The Edge (00:27:23):
I mean, basically the bottom line that we got yesterday is we’re screwed. I mean, that was my takeaway yesterday is that everything that we have had in place to keep things balanced has been washed away. So yeah, I’m kind of asking what is the direction you see things going in? You seem optimistic to me about the First Amendment being upheld for people in situations, so I’m actually very encouraged to hear that. Do you think maybe that that is so ingrained in the American mindset that it really will never go away?
Stephen Solomon/First Amendment Watch (00:28:00):
Well, that is the big question, certainly in this area that we’re talking about. First Amendment to make videos, every court, as I said, that has considered this, has held and recognize a First Amendment. That does not mean that every individual who asserts the right is going to be protected. It’s going to depend on the situation, and we’re going to learn about the different situations that come up to help you recognize, OK, I’m in this situation. I think I have my right, or I need to listen to the police officer move a bit, and I continue to make the video, but I’m out of the way and there’s ways to negotiate this. All the other questions. Am I optimistic? Yeah, I mean basically because if there’s one right, that the Supreme Court has just routinely upheld and in fact expanded has been First Amendment rights of expression, is that a guarantee? Of course not.
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We will see at the end, first Amendment watch has been documenting actually has a very useful tool that has all the executive orders, all the lawsuits, all briefs that have been filed, but there’s so many executive orders that affect First Amendment rights. It’s going to take a long time for these things to work the way through the courts. Am I basic optimistic on this particular issue? Generally because of the Supreme Court has been very strong on First Amendment rights of court’s, no guarantee. And there’s societal rights, law enforcement rights and so forth that are asserted against it. Yeah. Hi.
Simmerdeep Kaur | Walla Walla Union-Bulletin (00:29:55):
Hello? Yeah. Hi, my name is Sim. I work at the Walla Walla Union-Bulletin. Thanks for being here today. You said the assertion of these rights can vary from individuals in situations. So I’m just curious, everything that you’re talking about today, does that also apply to non-citizen journalists who are here on a visa or are things going to be different?
Stephen Solomon/First Amendment Watch (00:30:15):
Yeah. So do with these rights apply to non-citizen journalists, right? Yes. Anybody on American soil, they’re a citizen or someone working with a visa has the same First Amendment rights? Yeah, this often comes up. We have a lot of international students and they’re very worried about what they write. Should they even write some stories? Should they use a pseudonym? They, what are they going to do? And it is very hard to advise them because you can say, well, you have a First Amendment, but it involves legal representation and you can be snatched up off the street and what happens to you? So the legal system works slowly in many cases, and we’re seeing situations where the government tries to deport people before they even have a hearing. So it is very difficult. But the answer is yes, whether you’re a citizen or a non citizen, if you’re in the United States, you have the same First Amendment rights. So this is just a little bit more about the public forum concept, a quote from a Supreme Court case back in the first half of the 20th century, that the streets and parks have immemorial been held in trust for use by the public. So that’s a very strong statement about the First Amendment to use public forums for expression, including the collection of information.
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OK, so why do we have First Amendment protection for collecting information in the street and using video cameras? So this is a case Glick versus Kuf, if I’m pronouncing that correctly from 2011. And the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw. So it’s important for people to see what’s going on, and the press and bystanders in this case are kind of surrogates for the people themselves because not everybody is in the street at the same time seeing what’s going on. And so all of you, all us are out there news gathering and we’re drawing information about what’s going on, and we’re presenting it to the American people promotes the free discussion of government affairs. Major purpose of the First Amendment is to protect the free discussion of government affairs. It’s the marketplace of ideas principle that supports what we do as journalists, that we carry public discussion. This was a big thing back in the founding period, and Madison wrote about this extensively.
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Now, here’s something that goes to sort of another central principle of the First Amendment. We call it the checking function. That information collected and published by journalists aids in how we check government preventing abuses. We hold government officials accountable for what they do by collecting information, presenting it to the public. And some of the information collection can be done of course, with cameras, with video equipment. The right to gather information about their officials helps uncover abuses and can help in the function of government generally. OK, so the next thing that often comes up in these cases is what about the First Amendment and its protection? Does it only protect the video or the article once you’ve finished it and you disseminate it? Or does it also cover the making of the video and the article? See, I bring this up because in a number of these cases, the government has gone into court representing a police officer and said, well, we took your phone or we stopped you from making a video.
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But that’s not protected by the First Amendment. It is only the finished video that’s protected. What do you think of that? I don’t know. We call it the Picasso problem because here’s Picasso or any artist. And the finished picture, the finished painting, is of course protected by the First Amendment as freedom of expression. But what about the artist working in his or her space with a canvas and oils and things like that and actually making the painting? What about the journalist who has the video distributes it? But what about the process that came before, which is shooting the video? Is there a difference? Courts say no.
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The recording of video and audio is closely intertwined with the eventual dissemination of the information. It enables protected speech to occur, and thus the First Amendment must shield both. And so whether you’re an artist in your studio making a painting or a sculpture and then putting it in the museum, or whether you’re a journalist shooting a video and then later distributing it all protected speech. So no fixed first amendment line between creating speech and the speech itself. So when you’re out there in the street collecting information with a video camera that is protected expression on the way to an actual journalistic product.
Micaela Watts | The Institute for Public Service Reporting (00:37:10):
Hello, my name is Micaela and I live in Tennessee. And last year, state legislatures, you might be familiar with this, they passed what they’re calling the Buffer law. And this prohibits people from being within 25 feet of police if they tell you to stay back. The practical implication is much blurry, much more blurry. I believe it’s the reporter’s committee for Freedom of the press has sued them. And I wanted to get your thoughts in your career looking out more broadly. Have you seen anything like a buffer law being attempted before? And just your general thoughts on maybe the validity of it and if it’ll hold up in Supreme Court?
Stephen Solomon/First Amendment Watch (00:37:50):
Yeah, so that’s a terrific question. If we can hold that for just a few minutes because that’s part of the time, place and manner limitations that we’re going to talk about. And so we’ll talk about distance and that yes, trying to, some state legislatures are trying to legislate the distance and there’s lawsuits about that. But we’ll come back to that one more here, Steve. Yeah,
Abbey McDonald | Salem Reporter | Oregon (00:38:16):
Over here. I was just wondering, I’m from Oregon and we have a shield law, which means that journalists don’t have to share videos that they take with the police, but it also felt like that’s not very strong In Seattle during 2020, they passed a law where journalists had to turn turnover information. So I was wondering how strong is the right to retain the videos that you take and not have to publish ’em?
Stephen Solomon/First Amendment Watch (00:38:43):
Did that case come to a conclusion?
Abbey McDonald | Salem Reporter | Oregon (00:38:46):
I haven’t kept up with it. It might’ve been overturned. I know people were fighting hard against it.
Stephen Solomon/First Amendment Watch (00:38:52):
I would think that your video would be protected. I mean, that would have to be litigated, of course, but your work product, unless it would seem to me that unless you were involved in the commission of a crime where they could issue a subpoena or something. I don’t know that that I Not sure. I’m not sure. I mean, on the one hand, the government would argue that this is news gathering material and you do not promise confidentiality to anybody. And so there’s no principle about protecting sources. So it may be a kind of balancing that maybe is upheld, I’m just not sure. So not all these questions are resolved. So the question is here, do bystanders have the same right as journalists?
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And Supreme Court has said very clearly that the lonely Pamphleteer has every bid as much First Amendment protection as a big city newspaper, a broadcasting station, or any other news organization. The Lonely Pamphleteer has just as strong First Amendment protections as the Wall Street Journal or Reuters or Bloomberg or the Associated Press. And that’s important here because, and this again, has been litigated in these cases, the question of whether, well, it’s just a bystander, it’s not a journalist, but it makes no difference. So anybody can be a journalist for the day with the technology we have today because of the fact that everybody’s got a cell phone.
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So George Holiday was collecting information, he was news gathering when he made the video of Rodney King, and even more so today with social media available with the technology that enables all of us to have phones owns. This came up in, this is specifically a case involving a non journalist who was arrested for making a video. And the issue came up about whether he was protected in the same way that journalists were, OK, now we get to the time, place, and matter regulations. So the broad idea here is that the First Amendment protects you, however, however is really important. Not in every situation. The government can impose and does impose what we call reasonable time, place, and manner regulations. And that goes to the situation that was raised by a journalist over there, I forget her name, but it’s about like a 25 foot buffer zone. So that would be time, place, and manner.
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So whatever regulations that the government imposes has to meet a three-pronged test, the regulation has to be content neutral. That is if you are out there making a video, the government can’t impose regulations on you because they don’t like you, because they don’t like what you’re doing, what you’re representing. They don’t like your viewpoint. It has to be neutral. And so often that first part of the test is violated. The regulation has to be narrowly tailored to serve a significant government interest. So that would mean, for example, a general ban on making videos would not serve the government interest in the least restrictive way because you can control the government’s valid interest by a narrower regulation that says, well, maybe only in certain circumstances or certain distances rather than a full ban. So it has to be narrowly tailored and it must leave open ample alternative channels for communicating.
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So for example, if a police officer says, you can’t make a video at all, that’s a problem because under the third prong of this test, the officer should be saying, well, you can’t make it here for this, that, and the other reason, but we’ll let you make it over there. So a complete cutoff of your right to make a recording is difficult for the government to sustain unless it’s a really dangerous situation. Like there’s gunfire and the police have to clear everybody out, and that’s understandable. But a general ban, you can’t make the recording from anywhere simply doesn’t leave open alternative channels for communication or recording. So you always want to look at that particular thing. Are you being totally banned from making a video or is it just from this spot? The questions would be, what? Actions by a videographer or really anybody collecting news might violate reasonable time, place and manner regulations. Think about that for a second. Think about it in the context of Susan Green, whose video we just saw. Anybody have some ideas? What would be actions by a videographer that would violate time, place, and manner? Regulations, ideas? Yes,
Abbey McDonald | Salem Reporter | Oregon (00:45:09):
A CPR or something like pushing police or EMTs out of the way to get a better shot.
Stephen Solomon/First Amendment Watch (00:45:16):
OK. Yeah, I mean, the police and any kind of emergency responders have to be able to do their job. They have a legitimate job to do. And so a journalist or a bystander who’s making a video or writing notes and stuff can’t get in their way. That goes to maybe the spacing, what’s reasonable in terms of spacing. If you go right up to the police officer and put the phone like a foot away, I think the police would, in many cases, be legitimately could legitimately say, you need to move, not banning you from collecting information, but you’re too close. So the spacing is part of time, place, and manner, the manner in which you’re doing it. Other ideas, blocking traffic. Yes. So especially in a situation where the police or there’s emergency vehicles coming in and out, or is a journalist or the bystander in a position where they’re blocking an emergency vehicle? They sold a Susan Green video in the background. There was, I think an ambulance. So question is did she get in the way? I don’t think so, but there was an ambulance there. So blocking traffic is a very serious concern. Anything else?
Speaker 10 (00:46:53):
When there’s privacy situations at play, I’m thinking the voting place in certain situations, if you’re going to get somebody’s ballot, you can’t be videoing that.
Stephen Solomon/First Amendment Watch (00:47:03):
They can’t
Speaker 10 (00:47:05):
If you’re at risk of capturing somebody’s ballot or personal information.
Stephen Solomon/First Amendment Watch (00:47:09):
Oh, I see. So you’re getting close enough to capture personal information. That could be a situation. It could be the police officer is talking with an informant. And so that’s a special situation in which the government may have a good case for moving you away to protect what’s being said or what’s being written, things like that. Would an officer
Sean Keenan | Atlanta Civic Circle (00:47:38):
Test test, hello? Would an officer have any obligation to find somewhere private to talk with an informant, say there’s an undercover cop at a protest, and they think they could just coordinate amid the crowd and somebody captures on video that interaction? I mean, is the onus on the police at any point to shield yourself from? Well,
Stephen Solomon/First Amendment Watch (00:48:03):
I think we’re probably talking about the conversations they’re having. I mean, if it’s out in public and anybody can see it, I think it’s fair game. But if you get close enough that you can see what they’re writing or maybe hear what they’re saying, that might be the problem.
Sean Keenan | Atlanta Civic Circle (00:48:19):
Wait, but if they are in the public forum as there’s such a thing as to close, I mean, I’ve taken pictures of people’s
Stephen Solomon/First Amendment Watch (00:48:26):
Notes, said something is too close. Yeah,
Sean Keenan | Atlanta Civic Circle (00:48:29):
I mean, I think of the times when photographers have taken pictures of Donald Trump’s speech notes. Is that an infringement on his privacy?
Stephen Solomon/First Amendment Watch (00:48:41):
I doubt that because he’s a president of the United States and what the notes he makes are such public interest that I have a hard time seeing where he would win a case like that if it’s a private citizen and it wasn’t someone who was a newsmaker or involved in some kind of a public controversy and you just randomly focused in on their private scribblings,
Sean Keenan | Atlanta Civic Circle (00:49:10):
Yeah,
Stephen Solomon/First Amendment Watch (00:49:10):
That might be a problem.
Sean Keenan | Atlanta Civic Circle (00:49:13):
How about someone taking a picture of my notebook while I’m out in a crowd?
Stephen Solomon/First Amendment Watch (00:49:18):
Well, I think if sort of in between, isn’t it? I think part of this has to do with are you using equipment that brings sort of telephoto lenses? A question to ask is what’s going on? Discernible with your eyes and your ears without the use of enhancing equipment, like a long telephoto lens or some kind of a sound equipment that where nobody could hear something, but you’ve got sound equipment. So it goes to the reasonable expectation of privacy. There’s very little reasonable expectation of privacy for people who are out in the street. And so that’s why you can photograph them. They really can’t complain because they’re out there. Anybody can see them on private property, that’s not the case. But then how closely can you get to them and seeing what they’re writing?
(00:50:27):
If you’re using equipment that enhances your ability to do that, that can cross the line. So police can take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. And the Alvarez case was a case of collecting information as we’ve been talking about. So we asked the question about what kinds of time, place, and manner regulations might be valid. And so here’s a list, there’s probably more depending on the situation, but this is what a police officer should consider before asking you to move. It’s what a court will consider to determine whether what the police officer said was in fact reasonable. And so it’s these kinds of things, and of course it’ll vary by situation. Every situation is different. The context and the facts matter a lot. But you start out again with the first amendment right, we’re talking about situations in which it might be limited. And you identified some of those in our discussion, and there’s a few more there.
(00:52:03):
Wiretapping statutes. Many states have wiretapping statutes that prevent journalists or anybody from recording without consent of the other person or consent of all parties to the conversation. Some states called have one party consent. Conveniently, the party given the consent is the journalist, but that’s not the case in all states. But when you’re in public, the courts have said that the state’s interest in protecting private conversations is not implicated when police officers are performing their duties in public places and engaging in public communications, audible to persons who witness the events. So that may go to one or two of the questions that were asked before, engaging in public communications audible to the persons who are witnessing the events. Again, don’t use equipment that enhances voices that you wouldn’t otherwise be able to hear. What can you actually hear with the unaided ear and unaided eye?
(00:53:20):
So another thing, if you have a confrontation with a police officer who’s asking you to move, you can engage in even kind of emotional speech and you’re protected. I mean, Susan Green was a little bit upset. You could see why she was upset the way she was treated. But you don’t have to be polite, but it always helps. The police officer has the power. You don’t want to be arrested. It serves nobody’s interest to be arrested. You need to be out there covering things. And so the best thing to do is to be polite. I actually had a student, I taught this to my students. I do it every year. This a similar presentation. A couple years ago, literally a week after I did the presentation, my student went out and was making a video on the street of a demonstration, and the police officer came up and said, what are you doing?
(00:54:30):
You got to stop. And he said, officer, I have a first amendment to be here. I’m standing on a public sidewalk. I’m at a proper distance. I’m not interfering, and there’s no problem with vehicles. He went through the whole litany of time, place, and manner restrictions, and a police officer said, oh yeah, OK, carry on. And that was the end of it. Now, I can’t guarantee that going through that will work every time, but that’s the way you should approach a police officer who confronts you, not in any kind of abusive way that’s not going to get you anywhere. You assert what your rights are, explain that you’re in a place and you’re not interfering in a way that I just described my student saying it may very well work. Yeah.
Speaker 11 (00:55:29):
Hello. Hi. I noticed in the video that the officer was saying to the woman to act like a lady, act
Stephen Solomon/First Amendment Watch (00:55:41):
Like a lady.
Speaker 11 (00:55:42):
Yeah. Yeah. And I’m wondering, is there any, I’m sure the police departments have policies, but legally that maybe I’m in the weeds of it a little bit, but it sounds like he might not have been content neutral or manner neutral in how he approached her. And I am wondering if there’s any legal ramifications around that.
Stephen Solomon/First Amendment Watch (00:56:05):
Yes.
Speaker 11 (00:56:08):
What are those? Legal
Stephen Solomon/First Amendment Watch (00:56:09):
In a sense that if you are the police department, you’re the supervisor, you’re like, oh, no, why did he do that? I mean, they know it’s wrong. And does it raise the temperature and does it make it more difficult for the police to defend their actions? Yes. We’ll see that in a minute. Yeah.
Speaker 11 (00:56:36):
Is it because it implies he’s not being neutral in his approach or, OK,
Stephen Solomon/First Amendment Watch (00:56:43):
Well it’s animus towards a woman. Right, right. I mean, his attitude is just obvious. I don’t know whether he did what he did in arresting her because she’s a woman, but his attitude in doing that was way beyond what he’s allowed to do.
Speaker 11 (00:57:05):
It sounds like she might have a good lawsuit on her future.
Stephen Solomon/First Amendment Watch (00:57:09):
So that’s the next question.
Speaker 11 (00:57:10):
Yeah,
Stephen Solomon/First Amendment Watch (00:57:10):
That’s the next question. So you saw what played out. How many think that she would have a good winning case against the Denver Police Department? Yeah, pretty much everybody.
Bennet Goldstein / Wisconsin Watch (00:57:33):
Yeah. Yeah. So I was curious, this might’ve been this American Life episode about a guy who was encouraging jury nullification outside of a courthouse when jurors were coming in. And I can’t remember what if the court forced him to leave or it was a public forum, but I was kind of curious where that it might have the rationale. Was it disrupting a proceeding or interference with official acts or I can’t remember, and I’m just kind of curious where that might fall into.
Stephen Solomon/First Amendment Watch (00:58:10):
I don’t know about that one. And again, I think you have to look at what were the circumstances? What were the facts of the situation? The context is important. If he or she was in a public forum, there was no interference. There was no blocking of the steps into the courthouse and things like that, that might be in their favor. That is the journalist’s favor. So you have to look at this. You need more facts to determine that. So case of Susan Green, she wasn’t a traditional public forum. She was on a street. It’s a public street. Did the police officers apply reasonable time, place and manner restrictions? I think you kind of voted and you voted because you didn’t think that the police officer thought about the time, place and manner restrictions and just kind of stopped her. Let’s see what happened. Denver pays Colorado independent editor, Susan Green, $50,000 for cuffing her for recording police. Alright?
(00:59:27):
Yeah, yeah. So they didn’t litigate this. That’s why I say when this gets back to the police and the lawyers who represent the police, they’re like, oh no, this is just so obviously wrong. She was not interfering. She was standing, what do you think, 15, 20 feet away? There was no problem with vehicles coming in and out. There was no reason to arrest her. There wasn’t even any reason I could see to ask her to move to a different place. She just wasn’t interfering. The police officer got HIPAA involved with this. But you have to take these things into consideration. Anything can happen in a street. There’s hundreds of thousands of police officers around the country, and they’re not all trained to the extent that they can react in a proper way in any particular situation. Some act, I think most act with good motives, but there’s a lot of bad apples out there. And maybe you encounter one. It’s also a matter of how well they’re trained. I mean, there’s no excuse for the way she was treated, but maybe this police officer had no training in time place and manner regulations and things like that. That’s an excuse his behavior and they settle quickly. That’s how wrong it was. They didn’t want to litigate it. If they litigated, it probably would’ve been a larger financial number at the end.
Sean Keenan | Atlanta Civic Circle (01:01:13):
OK, so a First Amendment attorney told me a few months ago, the best way to steer clear of trouble with the law is to, in a protest environment, is to abide by officer’s commands. Even First amendment experts who could go toe to toe with a cop in court may find themselves up against an officer giving unlawful commands, or even worse, an officer using force without warrant. So I’m curious, I guess we all have to kind of draw our own lines, but how do you determine one when it’s worth it to argue with a cop? And at what point do we have to say, screw your rules to get an important story?
Stephen Solomon/First Amendment Watch (01:02:03):
OK, the cop tells you you have to move. Where does the cop tell you to move to? Can you still get your story where the cop wants you to go? Maybe it’s 15 or 20 feet away and they’re saying, go across the street. Well, maybe going across the street, you can still get your story. You use your telephoto lens. Ultimately, I think our responsibility is to do everything we can to get the story. You can’t get the story if you get arrested. So in many cases it’s better to stay out of jail. I mean, you never want to be in jail. And so you’re going to say, OK, what’s the next best thing I can do? The next best thing you can do, stay out of jail. Go across the street where the cop says it’s OK, or move another 10 feet back and continue your collection of news. I mean, with the cameras we have today, you could go at a decent distance and still bring it up close. And so I would advise people to the extent possible, obey the police command and argue about it later. I mean, bring a complaint later, but get your story. You’re not going to get your story if you’re cuffed. What about
Sean Keenan | Atlanta Civic Circle (01:03:25):
Dispersal? Order the police say, everybody go home. You want to be the last person to go home, I imagine. But that can get tricky.
Stephen Solomon/First Amendment Watch (01:03:35):
So this goes beyond the making of videos. You may be making a video, but it raises a larger question of sort of covering protests and being out with crowds, what rights you have. And lemme spend a couple of minutes on that. There’s a couple more slides, but I think it might be more helpful to address some of these questions. Susan Green was the lone videographer. There’s nothing else going on except the police dealing with someone who’s in some medical trouble. But let’s talk about covering ICE covering. Oh,
Hannah Pinski | Louisville Courier Journal (01:04:20):
Hi. I am behind the pillar here. Sorry, I’m Hannah. I’m from Kentucky with the Courier Journal, and I wasn’t around at the time, but during the Breonna Taylor protest, there was a TV reporter who was shot rubber, bullet sad because they were being shot at the crowd to disperse them and then the police specifically aim at her as well. And I know that’s not the same thing as getting arrested, but is there an argument, I guess, that the police were interfering with her first amendment right, by specifically firing at her for reporting what was going on during the protest?
Stephen Solomon/First Amendment Watch (01:04:59):
OK, so one question would be, was there a dispersal order? I don’t know. But there’ve been a lot of instances of journalists being arrested, covering protests. They’ve been shot at, they’ve been injured. So lemme spend, we’re running out of time, but maybe we’re past our time, so lemme just spend a couple of minutes on this. Journalists have no more rights than the protestors rights. Your first Amendment rights are equal to anybody else’s. When you’re out there covering a demonstration or covering a police action, your rights are no more than that of the people who are demonstrating. So when the police issue a dispersal order, it applies to you as well as the demonstrators. The only exception is when you have a press pass. But that’s a privilege. It’s not a right. Your first amendment right is equal to everybody else’s. The value of the press pass is that it can, in certain circumstances, give you privileges that other people don’t have.
(01:06:16):
Meaning that other people may be dispersed, maybe they’re arrested, and because you have a press pass and you’ve made that clear to the police, you can stick around. That’s not guaranteed. And the recommendation that First Amendment people put out there is that if there’s a demonstration going on, find the police officer in charge or talk to the police chief in your town and say, I’m covering this. I’m not part of the demonstration. It’s in the public interest that people know what’s going on, and I hope you’ll honor my presence there by not arresting me. If it comes to the point where people are arrested, I just want to be there to record it for the benefit of the public. And you may get a privilege because you are a member of the press and you’ve made it clear that you’re going to be there. You’d also do it during the demonstration show your press pass.
(01:07:18):
That’s no guarantee, but it may and often has in the past helped. So that’s what I recommend. But if there’s a dispersal order and you have no special privilege that’s been recognized because you’re a member of the press, you are subject to the dispersal order as well, and you can be arrested. By the same token, if demonstrators go onto private property, let’s say on campuses, so there have been instances where protestors have gone into campus buildings and taken over an administration building or blocked entrances or something. If you go with the demonstrators into that building, you are trespassing as well.
(01:08:07):
Unless you have permission from the police where you’ve said, I’m just there to record what’s going on. I hope you all understand, please keep that in consideration. I’m just covering the news. Hopefully they respond in a positive way to that. But there’s no guarantee you could trespass just like anybody else. And so that’s so try to work out agreements in advance If you are stopped by the police, if you and a police officer says, give me your phone, unless you’re under arrest, you have no obligation to hand over your phone. If you are under arrest, then the police officer can temporarily take your phone and inspect it to see that there’s no razor blade inside the cover or something. I mean, they do worry about hidden weapons and stuff, and they have a right to do a search incident to arrest, but they can’t force you to open up your phone for inspection.
(01:09:17):
There was a Supreme Court case 11 years ago that gave very strong Fourth Amendment protection to the contents of phones, whether it’s of journalists or other people. And the police must get a court sanctioned order search warrant to get the contents of a phone. If a police officer asks you open up your phone, I want to see what’s there, you can do that. I would advise you to do that because everything is there. They have to have a search warrant to search the contents of your phone. Another thing I would suggest that you do is if you’re going to cover protests, have a second phone, think about what’s on your phone these days. All kinds of personal information, personal contacts, photos, as well as professional information like your sources might be on there, and their phone numbers and conversations you’ve had with sources and text messages and emails. If they please do get a court order, it’s your phone. So maybe have a second phone that you use for situations in which you are out there and your phone may be vulnerable and keep your primary phone back in your office or in your home. Those are just some things to consider because it is increasingly difficult to cover these demonstrations. There’s more of them, there’s more emotion involved in them, and it may continue to increase from here.
Kevin Johnson/NPF (01:11:01):
Steve, I’m afraid our time has run
Stephen Solomon/First Amendment Watch (01:11:06):
Here.
Kevin Johnson/NPF (01:11:06):
Sorry. No, but I think more than anything, this discussion of underscores is to come to these encounters, these interactions in all of your reporting, knowing what the law is and knowing what protections you have. And as Steve mentioned, being able to talk with police in a matter of fact manner, in a non-confrontational manner, and explain what those rights are. And more often than not, perhaps you might have a better shot, but thank you so much, Steve, for spending the time with us. Yeah,
Stephen Solomon/First Amendment Watch (01:11:47):
Keep your wits about you a lot and in the confrontation with the police officer, be respectful. Cite what your rights are. You know what they are. And if you have a problem, if you’re not working for a big news organization that has lawyers on staff, there are pro bono lawyers like the reporters Committee of Freedom of the Press and a Fire Foundation for individual Rights and Expression and ACL U. So there is pro bono legal representation available should you need it. Keep those numbers handy. If you’re going to be in situations where you’re covering this, I mean, write them down because with that phone call, you want to call an organization like that, that can immediately respond to the situation that you’re in.
Kevin Johnson/NPF (01:12:40):
Please join me in. Thank you, Steve for spending this time. Thanks.
