For journalists, NYPD protest changes can’t come too soon

On May 30, 2020, as demonstrations erupted in New York City in response to the murder of George Floyd, photojournalist Adam Gray was working the streets around Union Square documenting clashes between police and protesters. Gray, who was on assignment for the US Sun, was carrying three professional cameras and wearing State Department–issued media credentials around his neck. Police surrounded Gray, placed him in handcuffs, booked him for unlawful assembly, and held him overnight. A few days later, then-mayor Bill de Blasio imposed a curfew, barring New Yorkers from being outside after 8pm. Journalists were specifically exempted.

Gray sued, alleging violation of his First Amendment rights, and became the lead plaintiff in a lawsuit joined by four other photojournalists who say they were harassed, arrested, and assaulted, and had their equipment seized or damaged by police while covering protests. The suit brought by the journalists was later consolidated with several others involving protesters themselves.

In September 2023, the city agreed to settle. The sweeping agreement was approved and went into effect last February. The NYPD committed to reforming the way it responds to protests. If the agreed-upon measures are fully implemented, they could significantly reduce the risks to journalists.

Under the terms, the NYPD will eliminate kettling, a practice whereby police surround protesters and arrest them indiscriminately. Journalists have frequently been caught up in these mass arrests. The language of the agreement states that journalists—like all citizens—have the right to record police activities in public and cannot be impeded. It also notes that “members of the press are not limited to people holding officially issued MOME press passes,” referring to the city agency that credentials journalists—which is currently the main (and sometimes only) standard the force uses.

The law is explicit that “NYPD officers may not prohibit, restrict, or interfere with the right to observe and record, and they may not arrest a member of the press or the public for recording police activity in a public place,” said Molly Biklen, a lawyer with the New York Civil Liberties Union who helped negotiate the settlement with the NYPD. “There’s a constitutional basis for all of this. And yet it still happens.”

The good news is that the agreement with the NYPD is part of a series of lawsuits, settlements, and legislation that is redefining the relationship between the police and journalists covering protests, according to advocates and lawyers.

Last year, the US Justice Department weighed in as part of the pattern-or-practice investigation into the conduct of the Minneapolis police department following the Floyd murder. “The First Amendment requires that any restrictions on when, where, and how reporters gather information leaves open ample alternative channels for gathering the news,” the report noted. “Blanket enforcement of dispersal orders and curfews against press violates this principle because they foreclose the press from reporting about what happens after the dispersal or curfew is issued, including how police enforce those orders.”

Gabe Rottman, policy director with the Reporters Committee for Freedom of the Press who leads its work on policing, sees a new legal consensus emerging. “It’s pretty valuable for the nation’s top law enforcer to be making exactly that point,” Rottman pointed out.

Yet despite the shift, journalists covering protests continue to face arrests, attacks, and other abuses of their rights. Kirstin McCudden, the editor of the US Press Freedom Tracker, says the organization documented more than forty separate incidents connected to coverage of campus protests, many involving student journalists. “We saw kettling, we saw journalists not be allowed to report,” McCudden noted. In Los Angeles, six journalists have been arrested despite a new law passed by the state legislature that specifically affirms the right of journalists to cover protests. More recently, at least three journalists were arrested documenting protests surrounding the DNC in Chicago.

Interestingly, the journalists arrested in Chicago were from out of state and had traveled to cover the Gaza protests that took place about a mile from the convention center. One local journalist raised concern about their colleagues who had “parachuted” in, claiming that they “raised the temperature” with law enforcement. “You guys get to go home, and we still have to deal with these police,” Chicago-based journalist Raven Geary of Jinx Press noted in a discussion hosted by the Freedom of the Press Foundation and posted to X Spaces.

Back in New York City, the Police Benevolent Association, which represents beat officers, is mounting a legal challenge to the NYPD settlement, alleging that it places cops at risk. An appeals court judge is considering their claim, but in the meantime the settlement remains in effect. There are three phases, with the first focused on reviewing current practices and updating training. It will take more time for all the terms of the agreement, including the ban on kettling, to come into effect. “This is going to be a big change as to how they police protests,” Biklen predicted.

For the sake of democracy and the protection of First Amendment rights, that day can’t come soon enough. In New York and across the nation, police departments should immediately ban kettling, which threatens the First Amendment rights of all protesters and specifically undermines the work of the press. As the Justice Department has noted, police departments should ensure that provisions are in place to allow journalists to continue to work, documenting events including police activity, when a lawful dispersal order is given or a curfew put in place.

Police have resisted change, saying that in an era when everyone has a cellphone they can’t differentiate between journalists and protesters. But this is a red herring, because every citizen has the same right to document and record the activities of police. In the instances where police must distinguish between journalists and protesters, court cases, state legislative action, civil suits, and settlements all point to a path forward. When determining who is a journalist, police should not just rely on credentials, but should apply what is known as a “functional test,” using common sense to judge if a person is engaged in newsgathering. How we as a society manage protest and civil unrest is a reflection of our commitment to core democratic principles—and that includes tolerance for the work of the free press.

Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism.