Mike Faulk arrest

When a journalist is arrested covering a protest, what should the news outlet do?

October 2, 2017

St. Louis Post-Dispatch reporter Mike Faulk was knocked down, pinned to the ground, pepper-sprayed, arrested, held in jail for 13 hours, and charged with a misdemeanor—all at the hands of St. Louis police. His offense? Daring to document the September 17 protests that followed the acquittal of Jason Stockley, the white ex-police officer who fatally shot Anthony Lamar Smith, a black man, in 2011. Although Faulk was wearing press credentials and told the arresting officers he was a reporter, he was zip-tied and taken in, along with some 100 protesters rounded up for failing to disperse.

The Post-Dispatch was quick to respond. It sent an editor to the jail to facilitate Faulk’s release, and an attorney for the paper wrote a letter to several St. Louis officials criticizing how the police treated the reporter. Post-Dispatch editor Gilbert Bailon blasted the police in a statement, as did the News Guild-CWA and the St. Louis chapter of the Society of Professional Journalists. Reporters at the paper tweeted about the arrest. Following his release, Faulk tweeted a screenshot of an email his sister sent to the mayor while he was still in jail, objecting to his confinement.

Just this year, there have been 23 arrests and 25 physical attacks on journalists, most of them at protests, according to data collected by the U.S. Press Freedom Tracker. (CJR is a partner of the site.) Faulk wasn’t the only reporter arrested at the Stockley-Smith protests; so were Getty photographer Scott Olson and independent livestreamer Jon Ziegler.

The most useful work for news organizations is what happens before an incident occurs.

In light of those dangers, how should a news organization respond if one of its journalists is arrested? Should the organization cover or otherwise amplify the arrest and underlying incident, as the Post-Dispatch did? What should the organization’s editors do? Should the arrested reporter tweet about his or her experience?

I talked with 10 media lawyers and US news executives, who generally agreed that it’s essential to develop a plan in advance, that it’s useful to amplify an arrest, and that the police must be held accountable. A representative sample of their comments follows.

DEVELOP A PLAN IN ADVANCE 

David McCraw, vice president and deputy general counsel, The New York Times: “The most useful work for news organizations is what happens before an incident occurs. In the heat of the moment, it is hard to find the right contact person, sort out the facts, and get a measured response. [So] it is important to reach out to the police and others in government in advance of a protest, establish a line of communication, try to understand their concerns, and—when it works right—have a mechanism for quickly resolving any problem.”

Charles Tobin, media lawyer, Ballard Spahr: “News managers … should be prepared … on two fronts: (1) Have a legal game plan. Know in advance which excellent local lawyer will be ready to take your late-night call, what the procedure is to make bail, whether the journalist is prepared for an uncomfortable legal battle, and whether the newsroom is willing to provide them and their family with every resource needed. (2) Have a news coverage plan. Journalists’ arrests, which are now too common in the US, should be treated as major news events. Most police officers are not trained to let journalists do their jobs while keeping the public safe. As with any other government activity in bad need of reform, shining a bright spotlight is an important part of the solution.”

REPORT AND AMPLIFY

Ken White, First Amendment and criminal defense lawyer, Brown White & Osborn: “It’s important to report on [an arrest], highlight it, and use it as a vehicle to educate the public about First Amendment rights. Explaining what happened, and having legal experts explain why the conduct was protected and the arrest inappropriate, is the best way to keep the public informed about how these rights are in constant jeopardy.”

Jean-Paul Jassy, media lawyer, Jassy Vick Carolan: “I understand that reporters and editors are reluctant to become part of the story, but attacks on reporters need to be part of the story. I suggest that reporters tweet about—or otherwise make known—when they are subjected to arrest, detainment, assault, threats, etc., and that other media outlets (even if informally) agree to cover one another during such incidents.”

David Greene, civil liberties director, Electronic Frontier Foundation: “Report on an arrest. Tweet about it. But have another journalist do the main reporting. Cover it the way you would any other story that involved an employee as a participant. And then editorialize like hell about it.”

Jack Greiner, media lawyer, Graydon: “[Whether to report on an arrest] has to be an editorial decision made by a dispassionate editor. And the criteria should be whether it is a newsworthy event. …But I have no problem with a reporter discussing it on Twitter. That person’s followers made a conscious decision to follow the reporter. That suggests they are interested in what the reporter is doing.”

HOLD THE POLICE ACCOUNTABLE

Gregg Leslie, legal defense director, Reporters Committee for Freedom of the Press: “If you get arrested, don’t try to stop the arrest by arguing with the officer, but always be sure to clearly identify yourself as a journalist and make clear that you were covering a news story. Even if that doesn’t help at the scene, it could help later when others review the officer’s actions, and it could certainly help if you later bring a civil rights suit over the incident. Civil rights suits are important, not because of the possibility of a monetary award, but because the possibility of such litigation can help lead to changes in the department, like better training and written policies.”

Robert Corn-Revere, media lawyer, Davis Wright Tremaine: “Police departments that cross the line should be held accountable. Many departments are just now becoming aware that the First Amendment protects the right of photographers to record the activities of the police in public places, because some courageous journalists have been willing to step forward and bring constitutional claims when there have been sham arrests. Nothing educates police departments so much as large damage awards and having to pay the attorney’s fees of successful litigants.”