A DISCUSSION OF LAW AND JOURNALISM

And in This Corner: NYPD v. Press. (It Ain’t Over Yet)

By Matt Catania

Judging from the response at a public hearing earlier this month, the New York City Police Department still has a long way to go to appease bloggers and other less-established journalists who, under the NYPD’s current rules, couldn’t get press passes to attend major media events or to cover breaking news.

The NYPD has proposed new rules that would make bloggers eligible to receive press passes (the change in policy resulted from settlement between the NYPD and bloggers who filed suit against the department in 2008), but several journalists at the April 7 hearing said the proposed rules gave them more questions than answers, and may herald tighter restrictions on press access to crime scenes than what previously existed.

Phillip O’Brien, a board member of the New York Press Club, said he was “chagrined [the press was] not consulted” on the proposed changes, which revise Chapter 11, Title 38 of the Official Compilation of Rules of the City of New York. Several other journalists testified at the more than two-hour meeting. In sum, their concerns are set out below:

- The new rules will abolish press identification cards; only the newly created working press cards will be recognized by the NYPD. The city will require applicants for the new cards to provide six pieces of reporting over the two-year period prior to an application, and all submitted pieces will have to cover emergencies, breaking news, or events to which the city limited access. However, because the new rules make no provisions for reporters covering some beats like entertainment and sports, these reporters (who currently hold press identification cards) may not be able to qualify for the new working press cards.

- The rules indicate that press cards are needed to attend city press conferences where space is limited. If reporters of major news outlets that already qualify for the working press pass monopolize these events, it will disadvantage bloggers, student reporters, and freelancers trying to meet the minimum requirements. The new rules don’t remedy the following Catch-22: You can’t cover news without a press pass, but you can’t get a press pass without covering news.

-  Even if a reporter earns a working press pass, police can still prevent him or her from crossing police and fire lines for reasons of “safety, evidence preservation and privacy.” If a reporter defies police instructions, the police can confiscate the reporter’s press card. Journalists want this entire provision deleted since the three grounds for preventing press access are entirely subjective. Journalists believe they can trust their own judgment as to when they can safely cross police and fire lines. (They said they’ve received no complaints about crossing fire lines at hazardous locations from the New York City Fire Department.) While the police department’s interest in preserving evidence is crucial, the new press access rules lack clear guidelines that would balance that duty of the police with reporters’ duty to effectively gather news.   Furthermore, New York law doesn’t recognize general privacy rights, so the journalists argue that individual privacy shouldn’t be a factor in denying journalists access to news. (There is no cause of action in New York for individuals whose name and likeness appear in the news as long as it is not for advertising purposes.)

- The new regulations will codify police conduct that has already substantially impaired journalists’ ability to relay information to the public in New York City. For example, last month, major news networks relied on amateur footage of the Easter shootings near Times Square because police didn’t allow professional videographers on the scene.  In instances like this, the press has fewer privileges than other civilians. Reporters are furious that instead of strengthening the inherent privileges of press cards, the new rules make them essentially worthless.

-  The NYPD is essentially cherrypicking which reporters can exercise their first amendment rights by issuing working press cards, but then overriding or revoking them as the department sees fit – in short, the NYPD is engaging in a prior restraint. The journalists argue that it is censorship that occurs before publication rather than in response to something already published. Any prior restraint (including licensing who can speak) is presumptively unconstitutional under federal law. The journalists also made the argument that the new regulations violate Section 8 of the New York State Constitution by abridging freedom of the press, and the new regulations allow the police to revoke press passes without due process. Further, the journalists argued that while the new regulations are burdensome on the press, they are missing administrative remedies and penalties for police who overstep their authority. Most of the provisions are so broad or vague that the regulations would be unenforceable as a practical matter.

Ray Stubbeline, President of the NY Press Photographers Association, summed up what seemed to be the general sentiment from the press about the proposed rules:  The NYPD is just “trading one federal lawsuit for another,” he said.

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