California officials must let journalists cover encampment sweeps

In recent weeks, police across California have threatened journalists with arrests for covering evictions of homeless encampments. It’s unclear why — the journalists aren’t interfering with the evictions. But they are documenting them, and clearly officers don’t want that.

We joined a coalition of over 20 press freedom and transparency organizations to warn authorities from Los Angeles to Sacramento that their own state law supplements constitutional protection of journalists’ right to access restricted areas where newsworthy events occur.

This is not a new problem. Police also violated the same law “left and right” earlier this year to arrest journalists covering protests against the Israel-Gaza war on college campuses and elsewhere. Check out our May interview with Susan Seager, an adjunct professor of law at University of California, Irvine School of Law, for more on that.

But it’s not just one law that police are violating. As the coalition explained, federal appellate courts nationwide have also protected the First Amendment right to record police.

The 9th U.S. Circuit Court of Appeals — the one with jurisdiction over California – has specifically ruled that even if police are entitled to disperse an unpermitted protest, encampment, or other allegedly unlawful assembly, they can’t disperse law-abiding journalists. Even the Department of Justice agrees.

Police in California have struggled repeatedly to cite any legal basis for their actions, because there is none. They’ve accused journalists of unlawfully intruding on their “work zones” — whatever that means. And they’ve claimed large areas are “crime scenes,” presumably because an allegedly unlawful encampment was set up there. That’s a tactic we also saw in Atlanta last year, when police illegally dispersed journalists covering protests against the police training facility commonly referred to as “Cop City.”

Sure, police may close off limited spaces in order to preserve evidence, but there’s no precedent for declaring large areas where low-level nonviolent offenses occurred to be “crime scenes” in order to arbitrarily banish the media for no legitimate law enforcement purpose.

Officers test these spurious legal theories at their own risk. Freelance photojournalist Jeremy Portje sued the City of Sausalito, California, as well as numerous police officials over a 2021 arrest while reporting from an encampment. Court records show the case recently settled, although the details haven’t been made public.

April Ehrlich, another journalist arrested while covering an encampment sweep in 2020, also sued after the bogus charges against her were dropped. She was arrested in Oregon, not California, but Oregon also answers to the 9th Circuit.

Public radio reporter Josie Huang reached a $700,000 settlement agreement with Los Angeles County and the Los Angeles County Sheriff’s Department over her 2020 arrest. She was covering a protest, not an encampment sweep, but the same principles apply — police conduct, whether evicting people without homes or dispersing protesters, is newsworthy, and the First Amendment demands that journalists be able to cover it.

Last year, Stephanie Sugars of the U.S. Press Freedom Tracker, a project of Freedom of the Press Foundation (FPF), called the Los Angeles Police Department among the most “atrocious” of press freedom violators nationwide. They’ve lived up to that billing in the last year, including with the ridiculous failed lawsuits against journalist Ben Camacho for publishing pictures the police department gave him, which ended in another $300,000 settlement bill for taxpayers.

But that may have underestimated other law enforcement agencies in the state, from the San Francisco Police Department’s unlawful warrant to search an independent newsroom’s files to the revelation that the Los Angeles County Sheriff’s Department secretly investigated reporter Maya Lau on the plainly unconstitutional theory that her source materials constitute stolen goods. And now Sacramento is getting in on the action, intimidating reporters for covering news.

Let’s hope the coalition statement gets through to the offending agencies, even though the courts and legislature have not. Otherwise, Californians will not only miss out on important news, they’ll have to continue spending their money to pay for settlements.