S1: Welcome in San Diego. It's Jade Hindman on today's show , how to protect our First Amendment rights. This is KPBS Midday Edition. Connecting our communities through conversation. So last week , former CNN anchor and independent journalist Don lemon and independent journalist Georgia Fort were arrested by federal agents weeks after covering an anti-ISIS protest in Minnesota. They were among now six people arrested. A federal grand jury in Minnesota indicted them on charges related to interruption of a religious service at a church. Well , on Friday , they were released from custody. But it really raises the question. I mean , what do these arrests signal about press freedom and the First Amendment in the current political moment ? Well , joining me is David Lloyd , legal director of the First Amendment Coalition. David , welcome.
S2: Thank you. Great to be here.
S1: It's always great to have you on. Um , to start this conversation , I want to play a clip from a live streamed video Georgia Ford posted on Facebook. She said federal agents were at her door to take her into custody. This was moments before her arrest.
S3: I don't feel like I have my First Amendment right as a member of the press. Um , because now federal agents are at my door arresting me for , uh , filming the church protest a few weeks ago. Again , I don't have a long time here , you guys , but I wanted you to know for me , agents are at my door right now. Uh , it's hard to understand how we have a constant , a constitution , constitutional rights , when you can just be arrested for being a member of the press. Mhm.
S1: Mhm. So Lemon and Fort were both covering this protest as independent journalists. First , can you break down their First Amendment rights as members of the press.
S2: The First Amendment absolutely guarantees the right to cover the news , report the news and engage in journalism on matters of public concern , which is exactly what this protest was. Mhm.
S1: Mhm.
S2: Sadly I can't say I'm surprised by anything that this administration does anymore. And that's not a political comment. That's a comment on this administration's relentless assault on the Constitution and rule of law. So I find it appalling , but sadly not surprising. You know , the current president and members of the administration have been on a rampage against the press , Especially reporters who cover them with any form of critical detachment , and they perceive or appear to perceive any form of critical coverage as , you know , an attack or a crime , which is absolutely not correct in the First Amendment. The First Amendment protects , above all else , the right to report the news and criticize the government.
S1: So , absolutely , you know , they were both independent journalists , as mentioned earlier.
S2: Practically. Perhaps. So legally , everyone who covers the news and everyone who comments on the news be be it a reporter or member of the public , is equally protected by the First Amendment. As a practical matter , I don't think it's a coincidence that this administration is targeting independent journalists who lack the institutional support of major media organizations. That being said , I should note that the , you know , the government did serve a search warrant on the home of a Washington Post reporter. So obviously , reporters who work for legacy media are not immune or exempt. Yeah.
S1: Yeah. Justice Department officials , you know , initially , well , they failed to secure a warrant against Lemmon twice until this case went to a grand jury.
S2: If we assume , potentially , that some persons violated the Face Act by the protest that they staged at this church in Minnesota , and I'll assume that without necessarily agreeing with it , the fact that Don Lemon and Georgia Fort were simply present and reporting that news does not mean they committed the crime of physical interference with a place of worship. The statute is very clear. It's not just any protest at a clinic or a place of worship. It requires no physical interference , i.e. preventing people from restricting their freedom of movement. It requires physical obstruction , which means making it impossible to get in and out of the church or facility , or at least , you know , making it unreasonably difficult or hazardous to get in and out. And it also prohibits intimidation , which means to place a person in reasonable apprehension of bodily harm to themselves or another. So a mere protest at a church , whatever one thinks of that , you know , is not , does not rise to the level of a violation of this federal statute on its face. Now , and even if some of the people that were engaged in this protest did cross the line into physical obstruction , intimidation or physical interference , the mere fact that reporters are there present , covering that and streaming it does not mean that the reporters are committing the crime. The statute contains an express carve out , as it must , for any activity protected by the First Amendment , and the First Amendment protects the right to report the news on matters of public concern , which this clearly is.
S1:
S2: I think the entire press freedom community was shocked to hear this and appalled. And there's been , you know , numerous letters protesting this , numerous calls for the government to drop this case against the reporters because it's a it's an unprecedented assault on freedom of speech and freedom of the press to say that reporting the news as a crime journalism is not a crime. Reporting the news is not a crime. Sometimes reporters do cover the actions of third parties who may potentially be committing a crime , but that is in the public interest. To protect the rights of the reporters , to cover the news and inform the public about matters of public concern , which this clearly is.
S1: And even beyond journalists. Um , protesting is not a crime. Talk a bit about that , because the label domestic terrorist has been thrown around a lot to describe any voice of opposition to this current administration.
S2: That is correct. This administration has thrown that epithet around quite a bit , and it's an immensely dangerous and appalling thing to say to characterize people exercising their rights to protest as domestic terrorists. That is not the language of a democracy and a language of of of a country governed by a constitution. That's that's the language of an authoritarian dictator to to demonize any opposition as so-called domestic terrorism. You know , potentially sometimes people who engage in protests may sometimes potentially commit minor crimes such as trespass or , you know , obstructing an officer , potentially. That depends on the facts. But the mere commission. Even if we assume that there is some minor crime being committed in the course of an otherwise lawful protest that does not remotely rise to the level of so-called terrorism , and it is immensely dangerous to demonize one's opponents , one's political opponents , with that kind of authoritarian language. Hmm.
S1: Hmm. Let me ask you this.
S2: The Face act is a federal statute , so it's prosecutable by , you know , federal officials. Um , there are I'm sure you know , if we assume that someone broke into a church or entered a church and physically threatened the the pastor or the or the priest or members of the congregation if that happened , you know. Pulled out a gun. Threatened to hurt people. Stopped them from going in and out. I'm sure that that violates any number of other state criminal laws. In addition to the Face act , we have laws against assault. We have laws against true threats to cause harm. We have laws against restraint of movement. We have laws against stopping people from going in and out of public places like churches. So if someone were to commit those acts and actually do those things , yes , potentially that's a state or federal crime. But again , simply being present as a reporter and covering those events does not make you a criminal. A reporter is not an accomplice to a crime , because the reporter is simply reporting the news.
S1: To the federal government. Though they did it , they they filed charges , made arrest. Could local prosecutors do something similar if they wanted to.
S2: Any law enforcement agency can potentially abuse the law and stretch the law beyond what it's supposed to cover. So there have been instances of local law enforcement abusing the law against journalists. Um , I'll give you two examples. One is in California and one was not in California. Several years ago , San Francisco police obtained a search warrant to for the home and work product of a reporter named Brian Carmody. And the allegation was that he was in possession of information that was relevant to the investigation into the death of Jeff Adachi , the former San Francisco Public Defender. California law expressly prohibits police from asking for or judges from issuing search warrants against reporters. Nonetheless , the police apparently missed that memo. So did the judges who signed the warrants , and they literally broke down his door and searched his home and took his equipment. And the advocacy community , the press freedom community mobilized immediately , you know , including but not limited to my organization , the First Amendment Coalition , and fought back early , hard and fast. And eventually that was resolved. But it should never have happened in the first place. There was also an instance in Kansas , I believe the Marion County Record was a newspaper in Kansas where police served a search warrant on the newspaper based on a bogus allegation that they had violated some state law while conducting their reporting. And again , that's the subject of current litigation. A number of cases claims have been settled. Again , the you know , there was an immediate outcry. The police backed off. The prosecutors backed off. That's still in litigation. That's just two examples. So yes , it does happen. Abuses of press freedom , violations of press freedom do happen at the state and local level as well as the federal level. I will say this federal administration is notoriously relentless about it. You know , um , you know , the situation , for example , the Brian Carmody warrant is an exception to the rule. It should never have happened. And I think it's been well recognized. That was an absolute outrage. But it's very much the exception , not the rule. Or is this administration , it seems to make it the rule , not the exception , to attack civil rights and civil liberties across the board. Mhm.
S1: Mhm. I also want to talk about legal observers , you know , people who are at protest , um , who are filming Ice raids and whatnot , what is within their constitutional rights here.
S2: The First Amendment absolutely guarantees the right to observe , document and record events of public concern in public places , including , but not limited to , the actions of law enforcement. One is obligated to maintain a reasonably safe distance. One cannot physically Interfere with law enforcement operations , you know , physically obstruct , physically prevent them. But one does have the absolute First Amendment right to observe , document and record the conduct of law enforcement in a public place. Hmm.
S1: Hmm.
S2: These arrests are designed to send a message to to deter and chill people from covering the news , from opposing this administration. And it's not just this incident with the Don Lemon and Georgia Fort arrests , the arrests of other people in this church. I mean , the government has the federal government has called people terrorists for simply protesting and documenting the conduct of law enforcement. They've claimed it's illegal to , quote unquote , dox law enforcement agents by simply recording their activities in a public place. We do not have secret police in this country. Authoritarian dictatorships have secret police. We should not have secret police in this country. If law enforcement officers are carrying out their duties in a public place , they do not have a reasonable expectation of privacy and not being documented and observed. The courts have repeatedly held there is a First Amendment right to observe , document and record the activities of law enforcement in a public place. And if we didn't have video of abuses that were committed , we would not have evidence when these things happen. Not all officers commit these kinds of abuses. Many officers do understand and respect the First Amendment and have no problem being recorded because they know that they're doing their job and they're fine with the people knowing it.
S1: Let me ask you this slapping the the label of domestic terrorists on protesters and any one in opposition , it's more than just about putting the label on someone.
S2: But it is designed to threaten , intimidate and chill people , right ? There is no. There is no one size fits all federal domestic terrorism statute. There are specific laws that prohibit certain kinds of crimes designed to intimidate. Right. And so , yes , if I blow up a building , you know , and make political demands because I blow up a building , potentially , that's a that's a terrorism charge , but reporting the news , engaging in protest , even if that protest is angry and vehement , the First Amendment guarantees the right to oppose the government. And the government should never be surveilling people or threatening them simply for exercising their rights to freedom of speech and protest and dissent.
S1: And quickly.
S2: You know , my office has some on our website , the ACLU and others can educate people on their rights. I will say , you know , the First Amendment is like anything else. Use it or lose it. If you ignore your rights , they will go away. And I think it's incumbent on all of us in civil society to stand up for the Constitution and rule of law. This is not a partisan political question. There are any number of Republicans who are just as concerned about abuse as a rule of law by this administration.
S1: I have been speaking with David Lloyd , legal director of the First Amendment Coalition. We'll link to those resources on our page , KPBS. Org. David , as always , thank you very much.
S4: Thank you.
S1: That's our show for today.
S5: I'm your host , Jade Hindman. Thanks for tuning in to Midday Edition. Be sure to have a great day on purpose , everyone.
