We enjoyed the presentations and papers shared last week at the Association for Education in Journalism and Mass Communication conference here in Washington, D.C. There’s a lot of great research being done in areas that impact both media law and scholastic journalism — like this paper from Liz Woolery, a doctoral fellow at the University of North Carolina at Chapel Hill, examining the newsgathering rights of both journalists and citizens.
In an email interview, Woolery answered our questions about her research.
Q: What made you want to look into this topic?
Woolery: It’s becoming increasingly apparent that newsgatherers affiliated with “legacy media” are no longer the sole or even primary source of information about what happens in our communities. Instead, our on-the-street sources may [be] citizen journalists or an individual with a smartphone who happens to be at the right place at the right time. So what this paper argues [is] that we should stop thinking about “newsgathering” — which connotes “legacy media,” “old media,” and traditional journalists — and instead think about “information gathering,” which is a more-encompassing term and one that acknowledges our current media landscape and our sources of news and information.
When the average citizen whips out a smartphone and takes a picture of what’s happening around them, it may not be considered “news.” But the First Amendment does not give preference to traditional newsgatherers over individuals gathering other types of information. So I wanted to see what the legal landscape looked like for individuals involved in information gathering, and not just newsgathering.
I used this paper as a jumping-off point for my dissertation, which would look at a more broad conceptualization and framework for the right to gather information in a technologically mediated world.
Q: Your abstract ends with the question: Is there a First Amendment right to gather information in public places? What did you find?
Woolery: Well, this research looked at three “information gathering situations”: recording law enforcement officials (such as police) engaged in their duties in public places, news and information gathering at a crime or accident scene, and finally, information gathering at polling places, such as exit polling.
So, does the right to gather information in public places exist? Yes and no. It really depends on the location, circumstances, and local laws. My research showed that there is generally a right to record law enforcement activities in public places, and there is generally a right to gather information outside of polling places (though with restrictions on how many feet you must be outside of the polling place), but for the last area, information gathering at crime and accident scenes, the case law is muddled and unpredictable and likely to remain so for a long time to come.
Q: Why is this a problem that journalists and citizens run into so frequently?
Woolery: The problem may not be “frequent” in the sense that it’s happening every day or even every week, but it does seem to be increasingly common. I would attribute this to the increased presence of smartphones and other portable, camera- and recording-enabled devices that are accessible to many.
Q: What was the most intriguing case you came across in your research for this paper?
Woolery: The case most emblematic of this issue, in my opinion, is Glik v. Cunniffe. Glik involves an attorney (Simon Glik) who was walking through Boston Common in 2007 when he spotted three officers arresting a young man, so he took out his camera phone and started filming. He was asked to stop and refused to. He was then arrested and charged with violating of Massachusetts’s wiretapping law, aiding the escape of a prisoner, and disturbing the peace. Ultimately those charges were dropped, but he filed suit against the officers claiming they violated his First Amendment rights. The First Circuit Court of Appeals agreed, and in a really great opinion, the judge wrote, “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”
Glik is just such a perfect case because it involves an individual exercising his First Amendment rights in one of the nation’s most-celebrated locations for free expression. Not only that, but Glik’s actions are a great example of how free speech and free press protections can enable citizens to “check” government officials, ensuring accountability and limiting corruption.
Q: What do you think is the most important thing for readers to take away from your paper?
Woolery: There are not black-and-white rules with regard to information gathering, whether you are a reporter at The New York Times or an average Joe at the right place at the right time (or the wrong place at the wrong time, depending on how you look at it).
Equally important is understanding that the Supreme Court has not given special significance to the First Amendment’s press clause, meaning that that Times reporter and that average Joe generally have the same rights with respect to newsgathering or information gathering.
Q: Was it discouraging to you to examine so many arrests? Do you have hope that journalists’ rights will be more readily recognized in the future?
Woolery: I absolutely hope that there will be increased legal protection for the gathering of information and news, by both “traditional” journalists as well as “non-traditional” journalists, such as those engaged in citizen journalism and crowd-sourced journalism, for example.
The most encouraging finding in this paper is that we are starting to see a First Amendment-based right to record law enforcement in public places, and that states are really begin to sort out laws with respect to how many feet outside of a polling place an information-gatherer can stand, whether they are conducting an exit poll for a major news outlet or just soliciting signatures for a petition (both of which are great examples of what it means to gather information in a public place).