Police appear to be violating the First Amendment rights of protesters and journalists in Ferguson by arresting and targeting journalists, and by turning the right to assembly into a daytime-only right, according to legal experts.
“Police and officials in Ferguson have declared war on the First Amendment,” said Gregory P. Magarian, a law professor at Washington University Law School. “Since Sunday’s police shooting of an unarmed student, Michael Brown, local officials and law enforcement have blatantly violated three core First Amendment principles: our right to engage in peaceful political protest, the importance of open government; and the freedom of the press.”
Magarian added, “In the space of one evening, police in Ferguson conducted a master class in destroying the freedom of the press.”
Other legal experts at Washington University and Saint Louis University law schools, as well as a media lawyer, agreed that police actions appear to have violated the First Amendment rights of protesters and journalists. In addition, the American Civil Liberties Union of Eastern Missouri, sent a letter to Ferguson Police Chief Tom Jackson telling him that his crackdowns went “far beyond the bounds” of government authority and that the tactics “suppress peaceful expressive activity.”
Traditional place to protest
The First Amendment violations deepened Wednesday as police tried to keep protesters off the streets at night and as reporters, news crews and citizen journalists were arrested and targeted for police action.
Reporters from the Washington Post and Huffington Post were arrested in a McDonald’s restaurant when they did not quickly obey a police order to leave. St. Louis alderman Antonio French, whose blogs from the protests have been journalistic, was arrested for not leaving a protest that had been declared an illegal assembly. And police fired tear gas close to an Al Jazeera America crew setting up for a report.
Alan Howard, a law professor at Saint Louis University, said that talking back to police or showing them disrespect is not enough to justify an arrest.
“Individuals have a right to speak back to the police -- the police do not have the authority to demand total submissiveness,” Howard wrote in an email. "Questioning police authority as such is not resisting arrest, especially when the questioning occurs before any arrest and seems to be the action that triggered the arrest.”
Howard wrote, “what the protesters are saying by their signs, shouting, raising their hands and the like is clearly protected speech -- it is political speech. Moreover where they are speaking -- on public streets and sidewalks-- are public forums and thus are places where citizens have a presumptive right to speak.”
Even though the streets are traditional places for protest, authorities can establish reasonable time, place and manner restrictions that are “non-censorial,” Howard said.
“So the police say that they are not banning assembly entirely -- just prohibiting the congregation of lots of people late at night where experience has shown that the congregation of lots of people has crossed over from protest into violence, looting and so forth. Whether what the police are doing constitutes a permissible time, place and manner response is clearly debatable however … do they really need to turn the right to assembly into a ‘daytime’?”
Not just daytime right
Magarian answers Howard’s rhetorical questions with an emphatic "no." He concedes that “the police have proper authority to pursue and arrest violent protesters, looters and arsonists.” But he adds, “What they don’t have any authority to do is treat peaceful protesters like criminals.
“In extreme circumstances, where violence pervades a city and overwhelms the ability of police to maintain order, the government can take measures like clearing the streets or declaring a curfew. But Ferguson in 2014 is not Detroit in 1967 or Los Angeles in 1992. Only a small handful of citizens have engaged in criminal acts in Ferguson. The main violence on the streets of Ferguson is police violence.
“Without declaring a curfew – because a curfew wouldn’t hold up in court – police are simply bullying people off the streets at night," Magarian said.
The First Amendment doesn’t say protests are limited “only during daytime hours, when police feel like letting us speak and assemble,” he wrote. “By suppressing political protest, police in Ferguson are attacking the heart of the First Amendment.”
Mark Sableman, a media lawyer for Thompson Coburn, said the police actions against reporters were especially disturbing.
“Reporters are carrying out an important and constitutionally protected role in reporting on events, and that role should be recognized by police. The distinction between reporters and others is made all the time, in public buildings with press rooms and press tables, courtrooms, at crime scenes, and even in foreign combat venues. If there was a disruption in the back row of a courtroom, and for some reason the spectators had to be cleared from the courtroom, it wouldn’t be proper to clear out the press row, too.
“It is even more disturbing when, in addition to a general lack of sensitivity to media interests, there also appears to be efforts to suppress coverage. We see that occasionally in tense scenes when police try to stop photography, or try to take or erase photography. That is uniformly improper, and sends a red flag to the public, which is entitled to see with its own eyes, through media photography, whatever is happening. Reports from Ferguson of police commands to shut off cameras are therefore particularly troublesome.”
Naming the shooter
The legal experts say there is no First Amendment right to demand the name of the police officer who shot Brown. The ACLU argued in a suit filed Thursday that the name should be provided as part of the incident report under the state’s Sunshine law. But police say that the threats to the officer allow them to withhold the name.
In 2001, when there were federal and state grand jury investigations into the highly controversial police shooting death of two men at a Jack-in-the-Box in Berkeley, authorities never released the names of the officers. Nor were those officers charged with crimes.
Bruce La Pierre, a law professor at Washington University, wrote in an email, “I doubt that there is any First Amendment principle or case that provides any clear guidance about disclosure of the officer's name at any particular time. What is needed --and from press reports appears to be absent -- is a sensitive accommodation of interests beginning with getting the police out of their armed riot gear.
“…The police have dug themselves into a deep hole; first amendment, and common-sense, suggest that disclosure and timely updates about the investigations would go a long way to solving the immediate problems. Sadly, the armed response suggests that the problems run much deeper than the one recent incident.”
Magarian wrote that withholding the name offends democratic and First Amendment principles.
“Open information about government action is the oil in the gears of democracy. When the government keeps secrets, the people lose liberty. We grudgingly tolerate some secrecy where national security is at stake. We also properly allow some details of legal investigations and proceedings to remain secret until all or most of the facts are in.
“The identity of the officer who killed Michael Brown, and the police report on the incident, are not matters of national security. Additionally, and crucially, the integrity of the local and federal investigations don’t require keeping those pieces of information under wraps. By withholding them, St. Louis County is directly violating clear statutory commands and broadly offending First Amendment principles of open government.”
Michael Wolff, dean of Saint Louis University law school, said one problem with the police action in Ferguson is it hasn’t been clear who is in command. He added sardonically, “The lack of clear command structure for the police in Ferguson reminds me of the late great Richard J. Daley of Chicago, 1968: the policeman is not there to create disorder; he is there to preserve disorder.”
William H. Freivogel is director of the School of Journalism at Southern Illinois University in Carbondale and a member of the Missouri Bar.