Press Freedom Violations, Police, and the Need for Heightened Legal Protection for Journalists

By: Hannah Cheves

Edited by: Olivia Cohen

In recent years, the integrity of journalists and newsrooms has come under fire in ways many have never seen before. With repeated attacks from the current President, who maligns the “fake news media”[1] on Twitter and in speeches at every opportunity, trust in the media has fallen drastically, with only about 40% of Americans claiming to have a “great amount/fair amount” of trust in the media.[2]  This has been coupled with increased press freedom infringements against journalists in protests. According to the U.S Press Freedom Tracker, a nonpartisan database of press freedom incidents in the United States, there have been over 880 reported aggressions against the press, including many by police or other government entities during the 2020 Black Lives Matter protests alone.[3]  This number includes aggressions such as equipment seizures, equipment damages, arrests, subpoenas, denial of access, or other incidents.Those infringements committed by governmental entities, such as the police, normally fall under the umbrella of violating a journalist’s First and/or Fourth Amendment rights. The increased frequency of these violations can hardly be traced back to one single thing, but it is impossible to ignore the anti-media rhetoric that has pervaded the country’s national dialogue in past years. With the increase of these infringements, it becomes more crucial than ever to expand existing legal protections for journalists when they cover protests. 

As it stands, journalists operating in their official capacity are subject to the same laws as non-members of the press when it comes to their reporting. For example, journalists, unless they receive an exemption, must comply with all mobility restrictions, such as curfews.[4]  However, the right of journalists to record governmental interactions are all well documented and solidly founded in legal precedent. In Smith v. Daily Mail Publishing Co., the Court ruled that “if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order” Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). Similarly, it is well within the scope of journalists to record police activity, which is an issue that has repeatedly come up in protests. See Fordyce v. City of Seattle 55 F.3d 436, 439 (9th Cir. 1995). For example, Amr Alfiky, a photojournalist, was arrested by police in Manhattan as he filmed the police performing an arrest.[5]  It has also been determined that the right to record police and law enforcement actions is in fact crucial First Amendment protection. See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013). This Statement directly states that “the derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.” 

With these rights clearly established, the rise in the number of cases of violations of press freedoms must be addressed. In many of these cases, such as that of Omar Jimenez[6], the police departments simply release the journalists and, in some cases, apologize.  However, this does not do anything to curb the violence faced by journalists by police during protests, nor the way that this violence interferes with their newsgathering and storytelling. It also does not recognize the Constitutional violation that happens in these incidents, and thus makes the incidents seem milder of an offense than they are. In addition, according to the 2020 Freedom of the Press Foundation report, no police officers have been charged with illegally arresting a journalist, while at least 16 journalists still face long-term legal ramifications for their arrests. The nonprofit legal group Reporters Committee or Freedom of the Press, along with other legal groups, sent a letter to California governor Gavin Newsom denouncing police attacks on journalists.[7] They cited several instances of press freedom violations in California, and asked Newsom to implement protocols to protect journalists at protests. The proposed protocols such as informing officers that detaining a journalist could be a First Amendment violation, discipline for officers who violate that right, requiring officers to display their badge numbers and other identifying information, allow journalists to be exempt from mobility restrictions, prohibiting officers from turning off their body cameras, and releasing information about the interactions of police and the press to ensure legitimacy of these interactions. In October, Newsom vetoed the proposed bill, stating that the language was too broad.[8]

Despite the failure of this bill, it is becoming more and more evident that increased protections for members of the media is absolutely necessary to the health of our democracy. The United States prides itself on freedom, and constantly infringing on the rights of the press could take the country in a dangerous direction, especially in times of great civil unrest. As stated in the U.S Statement of Interest, infringement on these rights “conflicts with the liberties the Constitution was designed to uphold.” See Statement of Interest of the United States, Garcia v. Montgomery County, No. 8:12-cv-03592-JFM (D. Md. filed March 4, 2013) If it is not physical assault on the press, rhetorical attacks, such as the ones we see even from the highest levels of government, give legitimacy to the infringement of First Amendment rights during protests. In these increasingly fraught times, local governments must prioritize the protection of journalists at protests- if not for the media, then for them. Having the country watch as officers violently detain[9] journalists further erodes trust in state governments and police. 

In summary, states and the federal government are not doing enough to protect our nation’s freedom of the press. Governments should enact legislation proactively protecting journalists, rather than looking at each situation on a case by case basis and determining if the arrest or seizure was justified. Further, police should be reminded that they are not at liberty to make arrests of journalists haphazardly, and if they do so, they need to be charged, as they directly contradict First Amendment rights and years of precedent determining they can and must be held accountable.

notes:

1. Berkeley Lovelace, “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise,” CNBC (CNBC, October 29, 2020), https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

2.  Megan Brenan, “Americans Remain Distrustful of Mass Media,” Gallup.com (Gallup, November 9, 2020), https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx.

3. “Need to Know: June 2, 2020,” American Press Institute, June 2, 2020, https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/.

4. “NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/. 

5. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

6. Jimenez, a correspondent and journalist for CNN, was arrested along with his crew by police in Minneapolis while he covered the Black Lives Matter protests there. He was clearly displaying his press pass.  He was detained but later released, with the governor and police apologizing for the arrest. Amir Vera, “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis,” CNN (Cable News Network, May 30, 2020), https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html.

7. Letter to Gavin Newsom: https://www.rcfp.org/wp-content/uploads/2020/07/7-8-20-California-Media-Coalition-Press-Attacks-Letter.pdf

8.  It is important to note that the language in the bill is the same as language that is in an existing California bill regarding the press. So far, there is little information on the next steps for these legal groups. Colleen Shalby, “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests,” Los Angeles Times (Los Angeles Times, October 1, 2020), https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests.

9.  Josie Huang was arrested in California while covering a protest, and was pinned on the pavement and handcuffed. The officers said she was “not wearing credentials”, but they were clearly displayed around her neck. Bruce Haring, “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang,” Deadline (Deadline, September 16, 2020),  https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/.
   

Bibliography:

Brenan, Megan, “Americans Remain Distrustful of Mass Media.” Gallup.com. Gallup, November 9, 2020. https://news.gallup.com/poll/321116/americans-remain-distrustful-mass-media.aspx. 

Haring, Bruce. “Media Organizations Send Letter To LA Sheriff's Dept. Condemning Arrest Of KPCC/LAist Reporter Josie Huang.” Deadline. Deadline, September 16, 2020. https://deadline.com/2020/09/media-organizations-send-sheriffs-letter-on-laist-reporter-josie-huang-arrest-1234575994/. 

Lovelace, Berkeley. “Trump Claims the Worsening U.S. Coronavirus Outbreak Is a 'Fake News Media Conspiracy' Even as Hospitalizations Rise.” CNBC. CNBC, October 29, 2020. https://www.cnbc.com/2020/10/26/coronavirus-trump-claims-the-worsening-us-outbreak-is-a-fake-news-media-conspiracy-even-as-hospitalizations-rise.html. 

“Need to Know: June 2, 2020.” American Press Institute, June 2, 2020. https://www.americanpressinstitute.org/need-to-know/need-to-know-june-2-2020/. 

Shalby, Colleen. “Newsom Vetoes Bill That Would Have Further Protected Journalists Covering Protests.” Los Angeles Times. Los Angeles Times, October 1, 2020. https://www.latimes.com/california/story/2020-10-01/newsom-vetoes-bill-that-would-have-further-protected-journalists-covering-protests. 

Vera, Amir. “CNN Crew Released from Police Custody after They Were Arrested Live on Air in Minneapolis.” CNN. Cable News Network, May 30, 2020. https://www.cnn.com/2020/05/29/us/minneapolis-cnn-crew-arrested/index.html. 

Letter to Gavin Newsom. Re: Law Enforcement Targeting Journalists during Protests, July 8, 2020. 

U.S Statement of Interest, Garcia v. Montgomery County, March 4, 2013.

U.S. Press Freedom Tracker, October 31, 2020. https://pressfreedomtracker.us/. 

“NY Photojournalist Arrested While Recording Police.” First Amendment Watch, February 13, 2020. https://firstamendmentwatch.org/new-york-police-arrest-journalist-while-recording-another-mans-arrest/. 

Taylor Swift’s Ongoing Battle for Artists Everywhere to Own Their Music

By: Danielle Spitz

Edited by: Michelle Pak, Olivia Cohen, and Dheven Unni

November 2020 brings both good and bad news for Taylor Swift. This month marks the first time that Swift will be contractually permitted to re-record the biggest hits off of her first six studio albums. Swift is also reminded, however, that she is not legally in possession of her work as her master recordings, or the original recordings of songs, have been put into question for the second time in less than two years. The public controversy involving Swift’s recording copyrights was sparked after Scooter Braun’s media company Ithaca Holdings LLC purchased Swift’s former label Big Machine Label Group (BMLG), and with it Swift’s master recordings, in the summer of 2019. On Nov. 16, about 17 months after Braun acquired BMLG, it was announced that the entrepreneur sold Swift’s master rights again to the private equity firm Shamrock Holdings. This is the latest installment in Swift’s history of championing artists’ rights, including her challenges to streaming services Apple Music and Spotify over royalties and how they compensate artists. This latest challenge over music copyrights is representative of the longstanding struggle between artists and record labels to have exclusive rights to masters.

Music copyright is divided into sound recording and composition rights. Swift’s new deal with Universal Music Group’s Republic Records signed in November of 2018 gives her control of both for the first time in her career. Before entering this new deal, Swift’s compositions, or songwriting, belonged exclusively to Sony/ATV Music Publishing per a deal she signed with the music publisher at age 14. Swift signed a separate deal at age 15 with BMLG that gave the record label exclusive rights to her master recordings. Although Swift’s deal with Republic Records allows her to own her new music, she is still left battling for control over the music she recorded while signed with BMLG. 

When Braun’s company purchased BMLG and Swift’s master rights for $300 million in 2019, Braun acquired much more than a few hit singles. Master recordings are major sources of revenue and licensing opportunities. Royalties from master recordings include those earned from streaming and consumption, sampling, public broadcast, and use in television and other forms of media.  For Swift, this means she only receives a percentage of the royalties produced from her first six albums while BMLG takes the rest. Now that Braun has sold Swift’s masters for $300 million -- the same price for which he acquired BMLG in 2019 -- the ownership of Swift’s masters is once again in question. According to a recent post on Swift’s Twitter account, Braun made it very difficult for Swift to enter negotiations to repossess her old work. Braun’s new deal with Shamrock Holdings will still allow Braun to profit off of Swift’s old musical catalog, meaning Swift’s only solution to reclaim her music is to re-record her past albums. 

Although Swift’s contract with BMLG is not considered unconventional in the music industry, it is indicative of the ongoing fight that artists face to own their work. Part of the complexity of this fight is the limited amount of information over copyrights that artists are privy to. Due to all of the monetary benefits that come with master rights, it is typically not in the label’s best interest to inform artists of certain copyright laws. Section 203 of the 1976 Copyright Revision Act does, however, include provisions that are essential to master rights for artists. 

According to Section 203, artists may reclaim ownership of their music copyrights and master recordings 35 years after an album’s release. Also known as the “35-year law,” this provision allows for the termination of the copyrights of both sound recordings and musical compositions for works published in 1978 and after. There is also a five-year window after the end of the 35-year period, meaning the effective date of termination spans from 35 to 40 years after the publication of a work. Artists may send a Notice of Termination up to ten years before the end of a 35-year period and not less than two years prior to the end of the period. During those two years and up to the effective date of termination, the current record company, or publisher in the case of an author, has exclusive privileges to make a deal with the artist. This might lead to favorable terms for artists in that two-year period, but if no deal has been made in that time then the artist is free to make whatever deal they want or even put their recordings on their own label. Swift’s public argument with BMLG put the issue of artists’ rights in the spotlight, despite record labels’ attempts to shield artists from litigation that could help them reclaim their work. 

Swift is not alone in her pursuits to reclaim ownership of her music copyrights. Other notable artists such as Prince, Jay-Z, and Janet Jackson have publicly expressed their anguish over not owning the master rights to their work. Although Swift and other prominent artists have become the face of this issue, the question of artists owning their own work also has real implications for lesser-known artists. The common tradeoff is for record labels to invest in unknown talent, such as Swift at age 15, while maintaining master rights. For struggling artists, this is often their best option to break into the music industry. However, Swift’s powerful stance might indicate that the status quo is due for a change.  

Bibliography:

Copyright Termination Experts (2018). “Urgent Deadlines.” http://copyrightterminationexperts.com/urgent-deadlines/. 

Copyright Termination Experts (2018). “US Copyright Act” http://copyrightterminationexperts.com/us-copyright-act/. 

Coscarelli, J. and Sisario, B. (2019, July 1). “Taylor Swift’s Feud With Scooter Braun Spotlights Musicians’ Struggles to Own Their Work.” New York Times.  https://www.nytimes.com/2019/07/01/arts/music/taylor-swift-master-recordings.html. 

Haack, B. (2017, Sept. 29). “Why Are So Few Artists Fighting To Get Back Their Masters?” Grammy News. https://www.grammy.com/grammys/news/why-are-so-few-artists-fighting-get-back-their-masters

Halperin, S. (2020, Nov. 16). “Scooter Braun Sells Taylor Swift’s Big Machine Masters for Big Pay Day.” Variety. https://variety.com/2020/music/news/scooter-braun-sells-taylor-swift-big-machine-masters-1234832080/. 

Ingham, T. (2019, Dec. 9). “Taylor Swift Plans to Re-Record Her Hits. Here’s What She Might Be Facing.” Rolling Stone. https://www.rollingstone.com/pro/features/taylor-swift-plans-to-re-record-her-hits-heres-what-she-might-be-facing-923019/.

Meiselman, J. (2019, Nov. 20). “Taylor Swift’s Messy Legal Situation, Explained.” Vice. https://www.vice.com/en/article/wjw3v4/taylor-swifts-messy-legal-situation-with-scooter-braun-big-machine-explained.

Sisario, B. (2020, Feb. 6). “Taylor Swift’s Next Big Deal Is for Her Songwriting.” New York Times.  https://www.nytimes.com/2020/02/06/arts/music/taylor-swift-universal-publishing-deal.html.

Literary Censorship: Ideological Warfare in School Bookshelves

By: John Perales Jr.

Edited by: Danielle Spitz and Maayan Abouzaglo

With the advent of Tinker v. Des Moines in 1969, the First Amendment right to self-expression became a hallmark of American student life. The Supreme Court’s decision that students do not lay down their constitutional rights at the schoolhouse gates was critical in establishing the constitutional rights of minors. This precedent was only further expounded in a later case taken up by the Seventh District Court of Appeals, American Amusement Machine Association v. Kendrick (2001), that dictated that children have freedom of speech. Despite these precedents, however, the censorship of literature within public school districts is a continuing problem within the United States, and one that violates the previously established right of minors to self-expression.

While mental images of literary censorship often bring to mind book burnings and George Orwell’s 1984, literary materials across the United States are still censored. The American Library Association’s Office for Intellectual Freedom (ALA) lists 544 challenged books in 2019. The organization states that this number is a fraction of the total challenges that occur in a single year, 82-97% of which go unreported.  These cases seemingly violate the Tinker decision and the 1965 Supreme Court case of Lamont v. Postmaster General which stated that “the right to receive publications is such a fundamental right.” 

To understand this discrepancy, one must first look to the 1982 Supreme Court Case, Island Trees School District v. Pico. In this case, the school board of the Island Trees School District was committed to removing certain books from school libraries that the board saw as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” Upon reaching the Supreme Court, the judges reached a plurality opinion, ruling that while school boards cannot ban books for simply disagreeing with their contents, boards can ban books if they conclude their content is unsuitable for children.

While the Supreme Court seems to have put a barrier in front of public school boards, the qualifying statements within the ruling make this barrier much weaker than it appears. In fact, it is hard to see how this Supreme Court ruling has done much to prevent the violation of students’ rights. Instead of rejecting books based on a school board’s own ideologies, school boards now only need to state that these books are inappropriate for children. 

The Court in Island Trees School District v. Pico failed to defend students’ rights. Instead of protecting the First Amendment rights of students, The Supreme Court has created a roundabout way for school boards to censor material and infringe upon students’ rights to self expression. The simple statement that a book is unsuitable for children puts a school board completely in the legal right. In some ways, giving schools such an easy and subjective way to censor literature makes this Supreme Court case regressive. This is demonstrated by the fact that six of the ten most challenged books of 2019 were challenged on the basis of “family values,” “morals,” and protecting “children.”  Likewise, ALA’s Office for Intellectual Freedom’s list of the ten most challenged books for 2019, eight of the ten books were challenged due to LGBTQ content. 

The precedent that students maintain their First Amendment rights on school grounds has been in place since the advent of the aforementioned Tinker v. Des Moines case. However, this precedent is not without its restrictions. In both Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, the Supreme Court has ruled in favor of public school districts to regulate the expression of students during school-sponsored activities. Aside from expression, the Supreme Court has also ruled in favor of altering what is to be taught in schools. These past rulings have generally been in favor of increasing the secularity of public school teachings, such as in Engel v. Vitale, which removed mandatory prayer from public schools. However, the precedent that the Supreme Court has the authority to control the curriculum of the public school system could be dangerous for the restriction of literature within schools. Given the current conservative makeup of the Supreme Court, it is not impossible that the ideological concerns expressed by parents could manifest itself into a more sweeping legal issue.

As long as school boards are legally allowed to interfere with the rights of students, students will never fully have their First Amendment rights. The practically unbridled censorship powers of school boards have infringed upon the freedoms of students to express themselves. Literary censorship should be more than just the subject of Banned Books Week. It should be seen as an issue that plagues students across the country and restricts their right to self-expression. As District Judge Joseph L. Tauro stated in Right to Read Defense Committee v. School Committee of the City of Chelsea, “The student who discovers the magic of the library is on the way to a life-long experience of self-education and enrichment… The most effective antidote to the poison of mindless orthodoxy is ready access to a broad sweep of ideas and philosophies. There is no danger from such exposure. The danger is mind control.”

Bibliography:

“Banned Book FAQ.” Advocacy, Legislation & Issues, July 30, 2019. http://www.ala.org/advocacy/bbooks/banned-books-qa. 

“Banning Books and the Law.” Findlaw. Findlaw Team, June 21, 2016. https://www.findlaw.com/education/student-rights/banning-books-and-the-law.html. 

“Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico.” Oyez. Accessed October 30, 2020. https://www.oyez.org/cases/1981/80-2043. 

Dynia, Philip A., and David L. Hudson. “Rights of Students,” September 2017. https://www.mtsu.edu/first-amendment/article/931/rights-of-students. 

“Engel v. Vitale.” Oyez. Accessed November 18, 2020. https://www.oyez.org/cases/1961/468. 

“FindLaw's United States Seventh Circuit Case and Opinions.” Findlaw. Accessed November 1, 2020. https://caselaw.findlaw.com/us-7th-circuit/1146977.html. 

“First Amendment and Censorship.” Advocacy, Legislation & Issues, July 13, 2019. http://www.ala.org/advocacy/intfreedom/censorship. 

“Notable First Amendment Court Cases.” Advocacy, Legislation & Issues, February 27, 2018. http://www.ala.org/advocacy/intfreedom/censorship/courtcases. 

“Top 10 Most Challenged Books Lists.” Advocacy, Legislation & Issues, April 20, 2020. http://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10.