I read Mike Johnson’s article Choosing Our Opponent: Why I will work to elect Joe Biden in the Stansbury Forum with a mixture of curiosity and concern. Not because I find it surprising that he is going to campaign for Biden’s reelection, but because he reaches back to the Carter presidency to find what he perceives as the U.S. Left’s failure in 1980 then and what needs to be done now. Johnson wrote:
“For me, it helps to go back to 1980, when much of the Left argued against supporting Jimmy Carter’s re-election race against Ronald Reagan, a position which I believe in retrospect was wrong.”
As someone who came of age in post-Vietnam America, the Carter years were a big part of my political life. I was sixteen when Jimmy Carter was elected president in 1976. I came from a blue-collar, working class family in Massachusetts, whose hearts really were with the Kennedy’s, despite Chappaquiddick, yet, both of my parents voted for Carter. My Mother, however, had an innate distrust of Southern Democrats (Carter was from Georgia), and my father once cracked, “Don’t trust anybody that smiles that much,” referring to Carter’s trademark smile.
By the time I started college in the fall of 1978, Carter’s presidency had already taken a sharp right turn. It got a lot worse. Soon after the Russian invasion of Afghanistan in December 1979, Carter reinstituted the registration for the draft (military conscription) and I was a member of the first generation of young men that had to register since the end of the Vietnam War. My first national demonstration, in fact, was against the draft in Washington, D.C., while he was still president on a cold, windy day in March 1980.
I write all of this because I know the Carter years really well, so I’m perplexed at why Johnson needs to have a public recantation four decades later of the position that his group the League of Revolutionary Struggle (LRS) took way back then. While he is not naïve about Carter’s record in office — he gives a long list of Carter’s failures but surprisingly omits many others, especially the Iranian hostage crisis — he appears to miss the big point: the Carter presidency was a transitional regime between the many decades of the Democratic Party domination of national politics since the New Deal to the Republican Party since 1980.
All the key political issues that we identify with the Reagan era, especially deregulation of major industries, including trucking, finance, and the airlines and the attacks on the labor movement, had devastating consequences for workers in what had been up-until-then densely unionized industries. When I was writing my book The Package King: A Rank and File History of UPS, I was genuinely shocked to discover the boasting of Carter’s inflation “Czar” Alfred Kahn, a self-described “good liberal democrat” and the former chairman of the Department of Economics at Cornell University, about making the lives of unionized workers worse: He wrote:
“I’d love the Teamsters to be worse off. I’d love the automobile workers to be worse off. I want to eliminate a situation in which certain protected workers in industries insulated from competition can increase their wages much more rapidly than the average.”
Mike Johnson recognizes that many leading labor figures hated Carter, including Machinist President William Winpisinger and AFL-CIO President Lane Kirkland, yet Kirkland endorsed and campaigned for Carter. In one of my favorite interviews with Winpisinger, Village Voice journalists Alexander Cockburn and James Ridgeway asked:
“Is there any way the President [Jimmy Carter] can redeem himself in your eyes?”
“Yes, there’s one way he can do it.”
“What’s that?”
“Die.”
“So, he’s totally unacceptable as President?’
“I have said so countless times. I don’t intend to relent. He’s unfit to run this goddamn country. He was elected on the crest of the wave of Truth Sayers, and that son of bitch had lied through his fucking teeth every day he’s been there. It’s quite clear he marches to the drum beat of the corporate state.”
Winpisinger went in a different direction than Kirkland and a majority of the leaders of U.S. unions in 1980. He led a walkout of three hundred delegates at the 1980 Democratic Convention to protest Carter’s nomination, and later endorsed radical environmentalist Barry Commoner for President. For the president of a union heavily invested in the U.S. War Machine was pretty gutsy stuff. But, Winpisinger later failed monumentality when he refused to call on his members to honor the picket lines of striking air traffic controllers in 1981, with the devastating consequences that followed.
While I was going through my old Carter file, I found it interesting that so much of what I kept from those years was from the lefty — liberal, iconoclastic Village Voice, secondarily the New York Times, and, lastly a sprinkling of article from the Old Left newspaper the Guardian, which remind how wide and deep the hatred of Carter was. I joined the International Socialist Organization (ISO) soon after I went to college at UMass-Boston and remained a member until 2018. Our newspaper Socialist Worker took the right position then — “No Choice in the 1980 Elections” — and I would defend it now.
I would suggest to Mike Johnson to go back to the 1976 presidential election and recall what Michael Harrington argued then. Harrington was the future leader of the Democratic Socialists of America, and probably still the best known socialist in the United States because of his book The Other America. In an exchange with Jacobin publisher Bhaskar Sunkara in 2013 on the legacy of Michael Harrington, I wrote:
Whatever doubts might have lingered for me about the question [voting for the “lesser evil”] were cleared up by a debate between Harrington and Peter Camejo during the 1976 presidential election campaign, when Camejo was running as the presidential candidate of the Socialist Workers Party.
I read the transcript of the debate when it was published by Pathfinder Press several years after it took place. Harrington and Camejo were both in top form. Harrington was subtle and nuanced. But I thought Camejo, arguing for the importance of socialists remaining independent of the two capitalist parties in the U.S., won the debate.
I wasn’t surprised by Harrington’s pitch for a “lesser evil” vote for Jimmy Carter over the incumbent and unelected Republican President Gerald Ford, but I was struck by one particular point. Harrington said, “The conditions of a Carter victory are the conditions for working class militancy, and the militancy of minority groups, and the militancy of women, and the militancy of the democratic reform movement. We can actually begin to make victories on full employment, national health and issues like that.”
I knew from my own experience of the Carter years that none of this happened — the mass movements didn’t advance because of a Democratic victory. And if we replace Carter with Mondale, Dukakis, Clinton, Gore, Kerry or Obama, can we say any different? This strategic “engagement” urged by Harrington weakened the left terribly during the post-Vietnam war era.
So, when Johnson writes that we should “pick our opponent” and campaign for Biden, I’m reminded that whatever you want to call that strategy, it is a road to nowhere.
As Israel’s war on Gaza enters its 10th month, we speak with Mohammed Abu Hashem, a Palestinian American who ended a 22-year career in the U.S. Air Force after an Israeli airstrike in Gaza killed his aunt in October. “It was clear to me that I needed to step away,” says Abu Hashem, who served as a first sergeant in the 316th Civil Engineer Squadron of the U.S. Air Force. He recently co-signed a letter with 11 other former U.S. officials who rsesigned over the Biden administration’s policy toward Gaza, Palestine and Israel. “The American people deserve to have a government that follows ethical and moral standards,” says Abu Hashem, who also talks about briefly meeting Aaron Bushnell before the airman died by self-immolation in February to protest U.S. support for Israel.
This content originally appeared on Democracy Now! and was authored by Democracy Now!.
In a special broadcast, we feature part of our recent in-depth interview about The Night Won’t End, a new documentary from Al Jazeera English which takes an in-depth look at attacks on civilians by the Israeli military in Gaza and the United States’ role in the war. The film follows three Palestinian families as they recount the horrific experiences they have endured under relentless Israeli assault, including the family of 6-year-old Hind Rajab, the young Palestinian girl who made headlines when it emerged in January that she had been trapped in a car with family members killed by Israeli ground troops, and the Salem family, who first lost dozens of family members in an Israeli airstrike and then additional family members who were executed by Israeli soldiers. We play clips from the documentary and speak to journalists Kavitha Chekuru and Sharif Abdel Kouddous, the director and correspondent on The Night Won’t End, respectively. We also discuss the plight of journalists in Gaza and U.S. complicity in Israel’s war. “There’s no question that U.S. weapons have killed civilians in Gaza,” says Kouddous. “This violates both international humanitarian law and domestic law.”
This content originally appeared on Democracy Now! and was authored by Democracy Now!.
As anti-imperialist sentiment gains momentum in Africa, the Alliance of Sahelian States has demonstrated a clear resolve to reclaim sovereignty from foreign powers. The backlash against Western presence, and French presence in particular, has ignited a broader conversation about the future of foreign intervention and the true path to self-determination for African nations. Yet, while AFRICOM and Western military forces are being pushed out of the Sahel by people’s movements, we see a much different relationship elsewhere on the continent taking note, in particular, of the ongoing close coordination between the US and Botswana Defense Forces as well as the US and Kenya Defense forces even as they are illegitimately deployed against their own civil society.
With Kenya as a current poster child, we observe that in Africa, there are hundreds of political parties that do not serve the interests of African people. These parties serve as middlemen between imperialism and the masses of the people. But even in more convoluted or reactionary political environments, there is always pushback. In tandem with the events in the Sahel, Kenya is witnessing its own wave of resistance against neocolonialism, particularly in the form of protests against President William Ruto and his collusion with the IMF to further immiserate the Kenyan people on behalf of Western interests. Ruto has also sent Kenyan police to Haiti, ostensibly to serve Western imperialist agendas under the guise of peacekeeping, in a plan crafted in large part by Meg Whitman, U.S. ambassador to Kenya. These moves have been met with significant opposition within Kenya, highlighting a broader continental struggle against foreign domination and exploitation. The ongoing events signal a rising Pan-African consciousness that seeks to dismantle the remnants of colonialism and resist new forms of imperialist control.
AFRICOM Watch Bulletin spoke with SalifuMack who is a high school English and History teacher, music lover, and sparkling water connoisseur. He is also a member of the Black Alliance for Peace and the All African People’s Revolutionary Party and an organizer with the Lowcountry Action Committee in the Lowcountry of South Carolina.
AFRICOM Watch Bulletin: You recently spent time on the ground in Burkina Faso during or shortly after the uprisings that led to the backlash against the French colonialists. Did you feel that this was just another military coup in Africa or that this was different and why?
Salifu Mack: Even before arriving in Burkina Faso, it was quite clear to me that the character of this coup was different from what is commonly associated with coups in Africa. My comrades on the ground at the Thomas Sankara Center for African Liberation and Unity had been reporting for months prior about the sentiment that had been emanating from the masses.
During my time in Burkina Faso, it was quite clear to me that the movements of the Traore administration have been in direct response to, and many cases, in lock-step with the demands of the people of Burkina Faso. While many coups in Africa are a top-down imposition of the will of a few “strong-men”, moves in Burkina Faso such as the ejection of the French military, embassies, and certain NGO and media properties, were demands originally spurring from the grassroots. The military coup led by Captain Ibrahim Traore just provided the muscle to move those demands into reality.
This is quite different from the January 2022 coup that preceded Traore, led by Paul-Henri Sandaogo Damiba. That coup administration was deeply unpopular with the masses and lasted only 8 months. Often in Western circles, it is easy to discuss the African masses as people who lack discernment, but the reaction to Damiba contrasted against the positive reaction to Traore should be enough proof to demonstrate that people in Burkina Faso are using sound reasoning and discernment skills to determine what is in their best interests.
AFRICOM Watch Bulletin: Clearly, France was the primary target among foreign interests. What signs, if any, did you see that the focus would then shift to US AFRICOM next or in the future?
Salifu Mack: On February 2, 2024, I attended a rally outside of the U.S. Embassy in Burkina Faso, organized by an organization called the Black African Defence League. The group was there to deliver a letter to the US ambassador to Burkina Faso, demanding US military bases withdraw from the country immediately.
They also denounced US imperialist policy, stating that U.S. interference in the affairs of the Alliance of Sahel States would not be tolerated by the popular administrations and that consequences for such interference would be backed by the masses of the country. I remember being so blown away not just by this action, but by the very clear analysis that members of the organization displayed regarding imperialism.
They understood quite clearly the essence of the idea that imperialism is the primary contradiction in the world today, and they situated the U.S. at the center of that. They were declaring that while France has been the most visible hand in the oppression they’ve experienced, France would never have such abilities without the backing of the U.S. and NATO more explicitly. They pointed directly to the 2011 NATO-led invasion of Libya as a material starting point for the issue of terrorism plaguing the Sahel today. Two months later, the U.S. was dismissed by Niger, and the action was widely celebrated across Burkina Faso.
AFRICOM Watch Bulletin: With the exit of the French, a power vacuum has been created in the Sahel. Some suspect that the US will fill that vacuum. Others think that Russia via its Wagner group or China might fill that void. In your view, how best can Africans fill that void?
Salifu Mack: This question comes up quite commonly in western Pan-Africanist spaces and I just want to point out that it goes back to what I mentioned in my first response, but unfortunately it’s going to be a little long-winded. Africans in the Sahel are not being lulled into compliance by the scent of some fancy Russian perfume or the promise of sweet words. The Sahel is a region of Africa that has been absolutely ravaged by the results of years of Western meddling in African affairs, direct and indirect. The Sahel has also, up to the point of establishing a relationship with Russia, received close to no real material support from any outside forces to help tackle that problem.
The Sahel is surrounded by countries that at best are hollowed-out shells of nations due to years of neocolonial leadership, and at worst, are treacherous lackeys of Western imperialism who willingly engage in acts of sabotage against nations who won’t comply with it. This question and criticism are also often raised by the Western diaspora, who must be mindful of our inability to materially change anything about our situations abroad, and who should be honest about the fact that our powerlessness has led to a passive complicity with U.S. imperialism. With that context in mind, I think we must discuss Sahelian partnerships with Russia, or whoever else they may engage with in the future, with a bit of humility.
While navigating desperate conditions, leaders of the AES have still managed to initiate quite meaningful security partnerships with the Russian state. Russian flags stand tall beside flags of Mali, Burkina Faso, and Niger at roundabouts in all three countries. And it is not because Burkinabe are engaged in a delusion of “friendship” but because they understand the utility of strategic alliances.
In an ideal world for most people I encountered, Africa solves its own problems. However, the Sahel is forced to deal very acutely with the reality that Africa at this very moment has been conquered. They are also more honest about the reality that Africa does not exist in a world apart from the rest of this planet. Sahelian partnerships with Russia have assisted in the longstanding fight against terrorism, creating space and opportunity for meaningful attempts at development. The need for development in the Sahel states is an ill-understood aspect of the struggle there.
The concern moving forward, in my opinion, needs to be less about filling a void, and more about building upon the achievements of the current struggle. This phase in the AES is just a building block, and each of us has a role to play in building new ones. Africans in the West need to turn our attention towards AFRICOM (through organizations like the Black Alliance for Peace) because its meddling against the region is only going to escalate from here. I also think that we need to be engaged in moving resources to organizations in the Sahel, like the Thomas Sankara Center so that they can continue to facilitate opportunities for in-person work with the masses throughout the region. There are quite energetic anti-imperialist and socialist organizations in the Sahel. Organizations are attempting to do a lot at this moment with very limited resources. The defense of our liberated territories has to be a priority because as these nations increase their capacity, they can increase the power of their material contributions toward the struggle for Pan-Africanism, which is also a very clear motivation of the masses in these countries. I have never encountered Africans with a more serious commitment to pan-African unity than I did in Burkina Faso.
AFRICOM Watch Bulletin: What evidence of structural or policy changes can you identify on the ground that has directly and positively impacted the material reality of the masses since the uprisings and coup?
Salifu Mack: The Traorè administration has received a lot of positive attention for kicking out the French military, NGOs, and enemy media, and rightfully so. I think many people living in the deluded realities of Western states that commit and fund terrorism but do not have to bear the brunt of terrorists running around unchecked, can not appreciate how meaningful it is to Burkinabè to see their anxieties about security being dealt with effectively for the first time in years. But in my opinion, more attention should be paid to the administration’s intense focus on development.
Captain Ibrahim Traoré has demonstrated that he is wholly invested in the process of nationalizing Burkina Faso’s resources. In 2023, the administration announced it would be nationalizing the sugar sector. The SN SOSUCO sugar company, which was once privatized during the term of the counterrevolutionary president, Blaise Compaoré, is now state-owned.
This administration has also positioned Burkina Faso, one of Africa’s foremost gold-producing states, to develop technology to process gold mine residues on-site. Construction on the factory began in November, and it was opened this January. In his formal announcement, Captain Ibrahim Traoré noted that the facility is 40% owned by the state.
In addition, Burkina Faso has long implemented land reform policies limiting the amount of land that can be privately possessed to 5 hectares. To boost production, the current administration is subsidizing the cost of agricultural equipment for farmers and has set a goal to increase the productivity of irrigated areas by at least 50%.
AFRICOM Watch Bulletin: Many African people in the United States question why we should care about what goes on in the Sahel. How would you respond to this and how can those who do care get involved?
Salifu Mack: In chapter 19 of Africa Must Unite, Kwame Nkrumah states that “… any effort at association between the states of Africa, however limited its immediate horizons, is to be welcomed as a step in the right direction: the eventual political unification of Africa.” In my observation, the average, everyday African in Burkina Faso is extremely concerned with the total unity of not just the Sahelian states, but all of Africa. It’s my most sincere hope that the AES can model something that will be the envy of Africans across the continent. The AES states have taken on a huge responsibility which must be delivered on by any means necessary. And this means that Africans everywhere — we are around the world — have a responsibility to defend it.
This defense, however, can not be actualized as passionate individuals reposting content on social media. We have to be members of political formations with clear principles, and goals, that have an emphasis on political education and action. We need to develop an analysis that helps to draw very succinct connections between what is going on in places like the Sahel and Haiti, and places like Baltimore and Los Angeles. Places where concepts like “terrorists” and “gangs” are being weaponized against the African masses to manufacture consent for police brutality and imperialist invasion.
There is no cure for the Democratic Republic of the Congo, no way to “free” Sudan, no end to settler colonialism in Western Sahara, or true liberation for Africans in the United States without this unity. No confrontation of violent client states, or our ruthless petit bourgeoisie. No path to true development— not a single road or hospital built truly to our advantage. There is no way forward for our individual states in this modern era that does not involve political and economic unity, and unity presupposes organization. Word to Nkrumah!
The Committee to Protect Journalists is responding to the needs of journalists in the United States as they face a range of challenges, from confrontations with law enforcement at demonstrations to raids on newspaper offices, and learn to navigate what has become an increasingly hostile environment for many in the media.
The following advice and recommendations are intended to give the reader a high-level understanding of the rights of a journalist when confronted by law enforcement officers while covering a protest or other political event. Given that these incidents often quickly escalate and that some—both protestors and police—do not always conform to legal strictures, it is generally prudent to comply with an officer’s commands, even if they are not lawful, and to protect one’s safety.
Carry your press credentials at all times and ensure credentials are visible to law enforcement.
When covering demonstrations, protests, and campaign or political events, make sure you know in advance what restrictions are in place regarding the public’s right to access, and whether there are any curfew or other restrictions in place.
Do not trespass on private property to gather news; do not cross police lines at crime scenes; comply with location restrictions and barriers, absent exigent circumstances.
You may record video or audio of public events, including of law enforcement activities at such events, as long as you are not interfering with or obstructing law enforcement activity.
Maintain neutrality when covering events. For example, do not join crowd chants or wear clothing with slogans related to the events you are covering.
Comply with dispersal orders or other directives issued by law enforcement. If engaged in an encounter with law enforcement, explain that you are a journalist covering the event and show your credentials. You may continue to record interactions with law enforcement.
If law enforcement requests your audio or video recordings, camera, recording devices, equipment or notes, you may refuse and request that the official contact your media outlet or its lawyers.
During a stop-and-frisk or arrest make it clear to law enforcement that any equipment, memory cards, notebooks, etc. contain journalistic materials or notes.
Police break up a pro-Palestinian encampment at DePaul University in Chicago. (Photo: Jim Vondruska / Reuters)
First Amendment rights of journalists
Right to gather news
The First Amendment protects both the freedom of speech and the freedom of the press. Journalists have a right to access public places to gather and disseminate news. Public places include sidewalks and public parks, but not private property. In addition, for government owned property, even those that allow for limited access to the public, members of the public, protestors, and reporters may be barred if the location is not itself public (for instance, private areas of a courthouse or jail) and hours of access for journalists are generally limited to those when the general public is permitted access.
Private property, such as convention centers or stadiums, may be used by public entities and public property may be used for private political party conventions. In either case, journalists may be provided access similar to the general public. For example, a judge ruled that a state Democratic organization holding a convention in the city’s civic center could not discriminate among journalists by admitting some and not others. The judge said that a private body leasing a government facility had the same constitutional obligations as the government. This will vary by jurisdiction. If you expect to be covering a convention or political party gathering, the journalist should attempt to get access/credentials in advance to allow for an opportunity for resolution of any disagreements in advance.
Time, place, and manner restrictions on demonstrations
The government is permitted to impose time, place and manner restrictions on speech as long as those requirements:
are content neutral (e.g., justified without reference to the content of the regulated speech);
are narrowly tailored to serve a significant governmental interest; and
leave open ample alternative channels for communication of the information.
These restrictions could include noise restriction ordinances, as well as a zone system in anticipation of a demonstration, such as demonstration zones, no demonstration zones, journalist-only zones, and areas for pedestrian traffic. In addition, restrictions may prohibit protestors from bringing camping material or staying overnight in public spaces. Localities typically have rules requiring protestors to obtain a permit for a protest, or for specific kinds of protesting (for instance marching in the street or using a loudspeaker). As long as the standards for granting a permit and the scope of the permit satisfy the time, place and manner restrictions, such processes are constitutionally permitted. Where those permit-related restrictions are not followed by a member of the public or a journalist, public officials may lawfully deny access.
Dispersal orders and curfews
Even where protestors have a valid permit, or where no permit is required under local rules, police may order protestors and reporters to disperse from an area if the time, place and manner restrictions test is met. This may occur where protestors are on a sidewalk blocking access to a building, or on a street blocking traffic. Similarly, if a reporter is in an unsafe area, for instance, stopped on a highway to record an accident, or standing on a phone booth to record a protest, police could order the reporter to leave the highway or come down from the phone booth. Police are generally required to issue warnings ordering protestors and reporters to disperse before making arrests, and courts may consider whether protestors and reporters could in fact hear the warnings in determining whether the arrests were proper.
In recent years, in response to various political protests, a number of municipalities issued curfew orders. Many of these curfew orders have exemptions for journalists, either explicitly or by permitting essential workers. Journalists should get as much information as possible about any applicable curfew order before reporting in an area, and should wear large, visible media credentials so that they are clearly identifiable as members of the press.
Right to record
Most courts have determined that the First Amendment protects the right to make video recordings of police officers when they are in public, although this right can be subject to the time, place and manner restrictions described above and recording or covering the demonstrations or law enforcement activity should be conducted in a manner that is not obstructing or threatening the safety of others or physically interfering with law enforcement. This right has been recognized by over half of the nation’s Courts of Appeals, including those in the First, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits. The Supreme Court and all other appellate courts have not affirmatively ruled for or against the right. Some states have recently passed legislation prohibiting recording or approaching within a short distance of a police officer regardless of whether such conduct actually interferes with the officer’s law enforcement activities. For example, Indiana passed a law in 2023 prohibiting individuals from approaching within 25 feet of an officer after being ordered not to approach. A journalist challenged the constitutionality of the law because of its potential to limit his right to record, but a federal district court held that the law is constitutional—as of spring 2024, the ruling is under appeal in the Seventh Circuit Court of Appeals. In Arizona, a 2022 law prohibiting recording within 8 feet of a police officer was held to be unconstitutional. Journalists should be cognizant of local legislation that may impact the manner in which they may record the police.
The right to record also exists at the U.S. border, and in 2020, the U.S. government entered into a binding settlement that prohibits customs and border patrol agents from infringing on the right to record law enforcement activity from publicly accessible outdoor areas as long as the recording does not interfere with the lawful law enforcement activity.
Many states have eavesdropping or wiretapping statutes that prohibit recording private conversations without the consent of one or both parties to the conversation, and some states have statutes that also apply to public conversations. In certain circumstances, courts have held that the application of these statutes infringes on the recorder’s First Amendment rights. Nonetheless, reporters should review applicable law and guidance in the states in which they are working.
Retaliation
Government officials cannot retaliate against reporters for their reporting or selectively grant access, for example, by denying a press credential. Reporters who have been unfairly denied press credentials should review the applicable law in the jurisdiction to learn how to challenge or appeal the decision.
Journalist privilege
Most courts have recognized that journalists have a qualified privilege under the First Amendment against compelled disclosure of materials gathered in the course of their work. Journalists can be required to hand over their work materials, but only in limited circumstances – for instance, if the government demonstrates a compelling need and shows that the information is not obtainable from another source. Many states also have so-called “shield laws” which generally provide journalists with protection against disclosing their materials. These protections are not absolute: for example, in a 2020 case, a court upheld a subpoena requiring a number of news organizations to turn over unpublished photos and videos of a protest because “the photos and video were critical for an investigation into the alleged arson of [police] vehicles and theft of police guns.”
More recently, police in Kansas executed a search warrant and raided the office of the newspaper, the Marion County Record and the personal home of its publisher. The warrant was subsequently found to be improper, but only after many records and devices were seized. If a journalist’s audio or video recordings or notes are requested by a government official, including a police officer, the journalist may refuse. But when confronted with a warrant for search and/or seizure, the journalist should ask to review the warrant and confirm it is signed by a judge and accurately identifies the address of the place to be searched, describes the items to be seized, and identifies the legal basis for the warrant. He or she should also seek legal counsel as soon as practicable.
In 2021, the U.S. Justice Department updated internal policies to prohibit the seizure of reporters’ communications data for purposes of identifying confidential sources. However, this policy is not applicable to state and local law enforcement officers. In any event, such officers are bound by the Constitutional protections regarding seizure discussed below.
Fourth Amendment protections of journalists
Search
The Fourth Amendment protects journalists from unreasonable search and seizure. As a general matter, this means that police cannot search one’s body or belongings without a warrant. But there are exceptions, including to prevent or avoid serious injury, to prevent the imminent destruction of evidence, and with the consent of the person to be searched.
In addition, police may briefly detain and search a person—a “stop and frisk”—for investigative purposes based on a reasonable suspicion that an individual is armed or about to commit a crime. There must be at least some objective justification for a stop and frisk, but the officer need not even believe that it is more likely than not that a crime is or is about to be underway. Therefore, this type of stop is generally limited to a pat down, bag search, or vehicle search to search for weapons. Law enforcement officers generally are not permitted to search the digital contents of a journalist’s cell phone or camera based on reasonable suspicion alone.
Seizure
In addition to protection against an unreasonable search, the Fourth Amendment also protects against an unreasonable seizure. A seizure of property occurs when there is some meaningful interference with an individual’s possession of that property. A seizure can also be of a person, such as when an individual is stopped and then frisked (as discussed above).
Prior to an arrest, and during a temporary seizure of a person (i.e., during a stop and frisk), police may also temporarily seize property, such as journalistic equipment. Therefore, it is particularly important for a journalist to prominently display press credentials and to identify himself or herself as press when confronted by police, to assuage any concerns police may have regarding suspected criminal activity. This will also be favorable in any subsequent analysis of whether reasonable suspicion existed at the time of the search/seizure.
To preserve the added protections this law affords to such journalistic materials, a journalist—in addition to prominently displaying his or her press credentials—should let the officers know as soon as possible that certain materials that are or may be searched (whether notes, memory cards, etc.) are press materials related to media intended to be disseminated to the public. The Privacy Protection Act of 1980 (the PPA) provides for heightened standards to protect against unreasonable searches and seizures of certain materials reasonably believed to be related to media intended for dissemination to the public—including “work product materials” (e.g., notes or voice memos containing mental impressions, conclusions, opinions, etc. of the person who prepared such materials) and “documentary materials” (e.g., video tapes, audio tapes, photographs, and anything else physically documenting an event).
These materials generally cannot be searched or seized unless they are reasonably believed to relate to a crime committed by the person possessing the materials. They may, however, be held for custodial storage incident to an arrest of the journalist possessing the materials, so long as the material is not searched and is returned to the arrestee intact.
Arrest
An arrest is essentially a seizure of the person and so also implicates the Fourth Amendment. An officer must have probable cause to make an arrest. Probable cause requires more than a mere suspicion but less than absolute certainty that a crime has been or is being committed. The standard is intended to be practical and nontechnical and as a result, is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully reduced to a neat set of legal rules.” It is well-established that mere proximity to criminal activity does not establish probable cause to arrest, so a law-abiding journalist should not be arrested for covering a protest or demonstration even if that demonstration becomes unruly or violent.
When an officer makes a lawful arrest, the arrest impacts what qualifies as a reasonable search and seizure under the Fourth Amendment. It is considered reasonable for an officer to search an individual for weapons and evidence when making an arrest, even if the officer has no objective concern for safety or evidence preservation. This means that an officer with probable cause to arrest a journalist (for, e.g., disobeying a lawful order of dispersal, violating a curfew, trespassing, or participating in other unlawful conduct) may have legal justification to search through the belongings of the journalist. However, a search or seizure incident to arrest is limited to the area within the immediate control or vicinity of the arrestee—i.e., anything which would be easily reachable as a potential weapon (such as, arguably, a large piece of camera equipment) or easily destroyed evidence (such as camera film or memory cards).
Often during protests, officers choose to issue citations as opposed to making arrests. The law is unsettled as to whether officers may conduct searches incident to the issuance of these citations. Some courts, including the federal courts in New York, have held that a law enforcement officer need not intend to make an arrest to conduct a search incident to arrest, so long as the officer has probable cause to make an arrest and conducts the search prior to giving a citation. Federal courts in the western states, including California, Oregon, and Washington, have taken a different approach. There, search incident to arrest is only permissible when an arrest is actually made. Thus, if an officer seeks to conduct a search of a journalist, the journalist may want to ask whether they are being arrested, as this may affect what rights the journalist has to refuse the search. On the other hand, this may escalate the encounter and cause the officer to place the journalist under arrest when perhaps this was not the officer’s intention.
Importantly, a search incident to arrest likely does not extend to a search of the contents of mobile phones or cameras. The Supreme Court has held that a search of digital data on a cell phone does not implicate the risk of harm to an officer or evidence preservation, and is therefore outside the scope of a lawful search incident to arrest. This holding would likely apply to digital cameras as well, as cameras contain data similar to that stored on cell phones. Seizure of these items likely is permissible, though.
People protest the 2023 killing of Jordan Neely by a fellow subway passenger in New York City. (Photo: Eduardo Munoz / Reuters)
Covering the 2024 National Political Conventions
In 2024, The Democratic National Committee and the Republican National Committee will hold their conventions to nominate Presidential candidates in Chicago and Milwaukee, respectively. The protections above are based on the U.S. Constitution and so will apply. In addition, states and cities may have additional protections available, which are addressed below.
Chicago, Illinois
Section 4 of the Illinois Constitution provides that “all persons may speak, write, and publish freely.” And Illinois state and local law generally mirrors that of federal First Amendment jurisprudence when it comes to the right to gather news. Illinois law also mirrors federal law with respect to Fourth Amendment matters concerning search, seizure, and arrest. Below is a discussion of key aspects of Illinois law relevant to journalists covering demonstrations.
Arrest
Under the Fourth Amendment, police can only make arrests with probable cause. Two common justifications for arrests at protests in Illinois are (a) failing to comply with a dispersal order, and (b) disorderly conduct.
Federal courts in Illinois have held that probable cause may exist for arrest when a dispersal order is given and not followed. However, if permission to march is revoked without notice, arrests for marching without permission are not justified. Importantly, the message of the protest cannot be a justification for a dispersal order and the police are expected to protect protestors, even if their message provokes a hostile response from others. Further, under Illinois law, individuals on foot in public cannot be arrested simply for refusing to identify themselves. However, providing false information to police can lead to arrest. Journalists should comply with dispersal orders.
Illinois law prohibits disorderly conduct, which is defined as making an “unreasonable or offensive act, utterance, gesture or display which, under the circumstances, creates a clear and present danger of a breach of peace or imminent threat of violence.” Failing to obey law enforcement, and “using force or violence to disturb the public peace” are also considered disorderly conduct. Also, failure to disperse in the immediate vicinity of three or more people who are committing disorderly conduct is prohibited by this law.
Journalists should keep this in mind when covering demonstrations, as police officers may use this law as justification for detaining demonstrators and anyone in their vicinity. Journalists should avoid participating in any activities that may cause or provoke a disturbance and clearly distinguish themselves from individuals who may be doing so by wearing conspicuous press credentials.
Illinois Right to Record
The state of Illinois requires all parties to a conversation to give consent before one can record “all or any part of any” private oral conversation. Chicago ordinance also prohibits video recording in “areas where a person should reasonably expect to have privacy.” The Court of Appeals for the Seventh Circuit, which includes Illinois, has held that there is a First Amendment right to record government officials performing their duties in public, except when the journalist is the subject of the arrest. As a result, journalists may record police officers covering demonstrations or protests as they will be occurring in public spaces and where the officers are on duty but such journalists must accede to an order to stop recording if the officers seek to lawfully arrest the journalist.
Illinois Shield Law
Under Illinois law, journalists enjoy qualified privilege with regard to maintaining confidential sources and news gathering material. A party that wishes to remove the protection can force a journalist to comply with a subpoena for material by showing that the interest in obtaining the material outweighs the journalist’s interest in not revealing their sources. The journalist loses the privilege if the information sought is: (1) highly relevant and material, (2) necessary to the claim or defense, (3) not obtainable from a non-journalistic source, and (4) the party has exhausted all alternative sources. Further, a court will only grant such a subpoena if “(1) the information sought does not concern matters, or details in any proceeding, required to be kept secret under the laws of [Illinois] or of the Federal government; and (2) all other available sources of information have been exhausted, and disclosure of the information sought is essential to the protection of the public interest involved.” Whether or not alternative sources have been exhausted is a fact-sensitive inquiry; however, parties seeking to remove the privilege must show that obtaining the information from other sources would be more than inconvenient, and that further efforts to obtain the information would likely be unsuccessful.
Milwaukee, Wisconsin
Freedom of the press under Wisconsin state law mirrors federal law. The Wisconsin Constitution provides that “no laws shall be passed to restrain or abridge the liberty of speech or of the press.” And Wisconsin law likewise affords the protections of the First and Fourth Amendment concerning news gathering, search, seizure, and arrest in a manner that mirrors that of federal law.
Arrest
Police officers in Wisconsin may arrest individuals at protests or demonstrations for disorderly conduct, which under Wisconsin law is defined as “violent, abusive, indecent, profane, boisterous, unreasonably loud, or similarly disorderly conduct.” The Wisconsin Supreme Court reads this statute quite broadly such that any conduct that has the tendency to cause or provoke a disturbance is sufficient to give police officers probable cause to make an arrest, even if no actual disturbance is created. That said, federal courts in Wisconsin have held that an individual cannot be guilty of disorderly conduct simply by being in the vicinity of others being disorderly.
Wisconsin law permits police officers to call for the dispersal of an unlawful assembly, including protests that unlawfully block public travel on the street or entrances to buildings. Failure to accede to a lawful dispersal order is grounds for arrest. Journalists should comply with dispersal orders and wear clear press credentials to separate themselves from any unlawful demonstrations.
Wisconsin Right to Record
Wisconsin is a “one-party consent” state, meaning that at least one person involved in a recorded communication must give consent to record a conversation by participants who exhibit a justifiable expectation that the communication is not subject to interception. Thus, consent is not required to record conversations in public where there is no reasonable expectation of privacy. Moreover, as discussed above, the Court of Appeals for the Seventh Circuit, which also includes Wisconsin, has held that there is a First Amendment right to record government officials performing their duties in public. Federal courts in Wisconsin have held that a journalist has the right to record a police officer making an arrest, but not if they are themselves being arrested. As such, in the event a police officer seeks to lawfully arrest a member of the press who is recording, that officer may order the journalist to stop recording.
Wisconsin Shield Law
Wisconsin law provides qualified journalistic privilege with regard to maintaining confidential sources and news gathering material. A party that wishes to override the protection may obtain a subpoena through court order only if all of the following conditions are met: (1) the news, information, or identity of the source is highly relevant to a particular investigation, prosecution, action, or proceeding; (2) the news, information, or identity of the source is necessary to the maintenance of a party’s claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding; (3) the news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding; and (4) there is an overriding public interest in the disclosure of the news, information, or identity of the source.
This guide was prepared for the Committee to Protect Journalists by TrustLaw, the Thomson Reuters Foundation’s global pro bono legal program.
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Acknowledgements & Disclaimer
The Committee to Protect Journalists and the Thomson Reuters Foundation would like to acknowledge and extend their gratitude to the legal team at A&O Shearman, who contributed their time and expertise on a pro bono basis to make this guide possible.
This report is offered for information purposes only. It is not legal advice. Readers are urged to seek advice from qualified legal counsel in relation to their specific circumstances. We intend the report’s contents to be correct and up to date at the time of publication, but we do not guarantee their accuracy or completeness, particularly as circumstances may change after publication. The Committee to Protect Journalists, A&O Shearman, and the Thomson Reuters Foundation, accept no liability or responsibility for actions taken or not taken or any losses arising from reliance on this report or any inaccuracies herein. Thomson Reuters Foundation is proud to support our TrustLaw member the Committee to Protect Journalists, with their work on this report, including with publication and the pro bono connection that made the legal research possible. However, in accordance with the Thomson Reuters Trust Principles of independence and freedom from bias, we do not take a position on the contents of, or views expressed in, this report.
Julian Assange has landed in Australia a free man, reuniting with his family Wednesday after pleading guilty to one charge of violating the U.S. Espionage Act as part of a deal with the Justice Department. The WikiLeaks publisher entered his plea on the Pacific island of Saipan, part of the U.S. territory of the Northern Mariana Islands, which lets him avoid further prison time following five years behind bars in the U.K. awaiting possible extradition to the U.S. He had been facing a possible 175 years in U.S. prison if convicted on charges related to his publication of classified documents in 2010 that revealed U.S. war crimes in Iraq and Afghanistan. “This case is an attack on journalism, it’s an attack on the public’s right to know, and it should never have been brought,” the WikiLeaks founder’s wife, Stella Assange, said at a press conference Wednesday. “Julian should never have spent a single day in prison. But today we celebrate, because today Julian is free.” We also play comments from members of Assange’s legal team, Jennifer Robinson and Barry Pollack, who said the use of the World War I-era Espionage Act to go after a publisher put press freedoms at grave risk.
This content originally appeared on Democracy Now! and was authored by Democracy Now!.
The Night Won’t End, a new documentary from Al Jazeera English, takes an in-depth look at attacks on civilians by the Israeli military in Gaza and the United States’ role in the war. The film follows three Palestinian families as they recount the horrific experiences they have endured under relentless Israeli assault, including the family of 6-year-old Hind Rajab, the young Palestinian girl who made headlines when it emerged in January that she had been trapped in a car with family members killed by Israeli ground troops, and the Salem family, who first lost dozens of family members in an Israeli airstrike and then additional family members who were executed by Israeli soldiers. We play clips from the documentary and speak to journalists Kavitha Chekuru and Sharif Abdel Kouddous, the director and correspondent on The Night Won’t End, respectively. We also discuss the plight of journalists in Gaza and U.S. complicity in Israel’s war. “There’s no question that U.S. weapons have killed civilians in Gaza,” says Kouddous. “This violates both international humanitarian law and domestic law.”
This content originally appeared on Democracy Now! and was authored by Democracy Now!.
