New Law Aims to Protect Journalists Covering Civil Disturbances

by Richard Knee

A California bill that will become law on January 1 is aimed at protecting the First Amendment rights of journalists covering civil disturbances. Whether it will actually do that remains to be seen.

Senate Bill 98, which Gov. Gavin Newsom signed in mid-October, will require that law enforcement officers allow journalists to enter closed areas and will prohibit them from assaulting or otherwise preventing journalists from doing their work.

The stakes are especially high for independent photo- and video-journalists, favorite targets of law enforcement officers wanting to manipulate and chill news coverage; cops know that freelancers can’t always count on the legal backing that media staff journalists can.

The U.S. Press Freedom Tracker reports that 142 journalists were arrested or detained in the United States in 2020. There were just nine such arrests the previous year.

A coalition of press-freedom and civil-liberties advocacy organizations, including the Guild, fought hard to get the new legislation enacted; law enforcement interests predictably tried to get the bill eviscerated. And we can expect that they’re trying to figure out how to skirt or flout the law without facing consequences.

“[T]here is a real danger that the cops will try to evade SB 98 by declaring an area to be a ‘crime scene’ and say that gives them the right to arrest reporters who refuse to leave,” Susan Seager, a law professor at UC Irvine, told the coalition the day after Gov. Gavin Newsom signed the bill. “There’s a bad Court of Appeal decision that affirmed the right of the cops to arrest a reporter in a disaster zone. Even though the court agreed that the reporter had a right under California law to be filming a disaster zone behind police tape – in that case, plane crash debris – the court held that because the cops declared the area to be a ‘crime scene,’ the cops had the right to arrest a reporter who refused to leave. ... [I]t’s possible that the courts would agree that the ‘crime scene’ exception applies to SB 98 as well.”

Equally worrisome is that SB 98 prescribes no penalty for violating it, though it might provide a basis for civil lawsuits by journalists whom cops victimize.

Adam Rose, Los Angeles Press Club secretary, who helped lead the pro-SB 98 effort, urges a cautious approach as implementation of the law moves forward. “Before [January 1], it might be best to focus on police training. After the new year, the focus can shift more to press training as by then we’ll know how police plan to implement it,” he said in a note to coalition participants.

Consensus among Guild leaders is that we need to work with other journalist and First Amendment advocacy organizations to focus attention on police and sheriff departments in the big metro areas in our union coverage area – San Francisco, Oakland/Alameda, San Jose/Santa Clara, Sacramento and Fresno.

On balance, SB 98’s enactment is a step in the right direction. It marks a big political win for unions, news organizations and lawmakers up and down the state who worked with unprecedented unity to fight law enforcement interests’ efforts to gut the bill.

Reportedly at the behest of the Los Angeles County sheriff, the Senate Appropriations Committee passed a poison-pill amendment that would have required journalists to obtain permission from police on-site commanders to enter closed areas. The Guild is among a score of organizations whose protests persuaded the committee to withdraw the amendment. The coalition also worked with the governor’s office on the bill’s final language.

Within the Guild, participants in the effort to move SB 98 forward were the Legislative & Political and Executive committees, especially President and fellow Guild Freelancer Derek Moore, who liaised extensively with Sen. Mike McGuire (D-north coast), the bill’s author.

— Richard Knee is a Guild Freelancer and chair of the Guild’s Legislative & Political Committee.