Policing Press Freedom

Abstract

This chapter takes aim at the assumption that affording special legal protections to journalists, beyond those enjoyed by the public, effectively limits law enforcement’s power to interfere with the press function. First, it describes how law enforcement often evades, violates, or simply ignores existing protections, raising questions about their effectiveness. Supporters of special protections from law enforcement might argue that the underinclusiveness of existing rules simply illustrates the need to update and expand these protections. But expanding procedural safeguards is unlikely to adequately protect the press function. Indeed, heightened press-specific rules might actually encourage law enforcement to use other substantive approaches to criminalize journalism and reporting and thus evade procedural protections. Amid broadening efforts to criminalize protest, trespass, and newsgathering, the substantive criminal law offers many possible avenues for law enforcement to crack down on critical reporting, threatening the checking function. This dynamic suggests that the press’s long-standing strategy of seeking procedural or narrow protections against law enforcement is misguided and ineffective. Instead, to ensure its autonomy and independence in the long run, the press should be a more active participant in seeking to limit law enforcement power and authority.

Keywords: press freedom, law enforcement, protest, first amendment, journalism