“This is public property.”
“(With sarcasm) I know, that’s a really good one… I’m communication faculty and I really get that argument..but you need to get out.”
Yesterday, a Missouri professor called for “muscle” to remove a journalist from a public place on campus where protesters had gathered, and the scene was captured on a video that many of you have seen by now. Above is a link to an extended version just now made available to me by the man who filmed it, Mark Schierbecker. (It’s also embedded below). The scene I’ve transcribed above happens at about 7:35, after the initial clip Schierbecker posted had ended, so you probably haven’t seen it. I’m still trying to raise Schierbecker on the phone to see if there’s additional context here.
“It’s a total maelstrom at the moment,” he said to me in a brief email.
I’ve spilled a lot of ink (ok, bits) writing about the rights of photographers — professional and “amateur” — to document important public events like protests. The rules of engagement have changed in the last decade, now that everyone with a smartphone might as well be a network news reporter or photographer. That’s created a lot of tension at protests and near any kind of police activity.
In the end, I think we all realize that plenty of abuses would never have seen the light of day without the impact of film and video, so all Americans have an interest in keeping people behind cameras as free as possible. So most of my stories have explained both the law of making images in public, and the practicality of it — mostly so amateur journalists will know their rights when confronted by law enforcement agents who don’t.
I sure never thought I’d have to write a piece explaining all this to a communications professor — let alone one who appears to assault a journalist only a stone’s throw from my alma mater, the University of Missouri, the country’s first journalism school. It’s heartbreaking and infuriating.
Before I get into the details of the law and what should happen here, let me take photographer Tim Tai’s lead — the 20-year-old was apparently the only adult in the area — and remind everyone that media rights are a very tiny part of the large story in Missouri.
“I’m a little perturbed at being part of the story, so maybe let’s focus some more reporting on systemic racism in higher ed institutions,” he Tweeted at the end of the day. “Just want to reiterate that while I think we need to talk about the 1st Am issues from today, the larger story is not about that.” And he’s right.
Columbia is smack in the middle of Missouri, and a bit of an oasis from the rest of it, two hours from both St. Louis and Kansas City. It’s a three-college town with a thriving economy. The rest of the state, from the Ozarks to the dangerous suburbs in Kansas City and St. Louis, is anything but thriving. Education Week ranks its schools 33rd in the nation. The state is below average in job prospects and family income. And then, there’s Ferguson. Columbia was relatively forward-thinking 20 years ago when I lived there. But a few miles in any direction outside of campus, and there were plenty of reminders you were in the South, with all that brings. Whatever you might think about the set of alleged racial incidents on campus that led to this situation, the accusations do not surprise me or my fellow students.
If people at Missouri’s campus were angry, you’ve got to give them that.
And if those angry people didn’t trust national media when they helicoptered in on the situation, well, I think you have to give them that, too. I don’t trust national media to get things right. Do you? Students refusing to talk to journalists is fine, even if it seems a bit hypocritical — after all, a public protest by definition calls out for attention. But the issues are a bit more complex than meets the eye.
All that out of the way, the events depicted on Schierbecker’s video are highly troubling. The actions of Communications professor Melissa Click warrant an immediate suspension by the school pending an investigation. Calling for “muscle” easily passes the bar for assault. It’s hard to imagine a circumstance where this woman should be allowed to teach communications to students on that campus again, though we should all wait for her side of the story to pass final judgment.
I have more sympathy for the students’ actions, because it’s clear that there was a lot of misunderstanding of the law being thrown around. Still, this can’t be missed. Tai was physically moved from a public space, and no, you can’t do that.
For precision on the governing laws here, I turned as I always do to National Press Photographers Association legal counsel Mickey Osterreicher, who tours the country training police departments how to not forget about the First Amendment.
With very rare exceptions, photographers can stand in public spaces and take images of things going on in public spaces. That part is pretty simple. The First Amendment argument here is not quite so simple, however.
The First Amendment says nothing about private individuals infringing on the right to a free press, it speaks only to government agents restricting the press. So that might not apply here. On the other hand, it might.
“Constitutional rights… only come into play if the government abridges them,” Osterreicher, said. “(But) faculty could be seen as state actors and therefore they might.”
More to the point: physically removing someone from a public space is assault.
“It is very apparent from the video that the students and their teachers were ill-informed and those who physically interfered with and threatened Mr. Tai could have been charged with third degree assault under Missouri law,” Osterreicher said.
There also seemed to be a misunderstanding of the right to privacy in this situation, Osterreicher said.
“It should be understood that people do not have a reasonable expectation of privacy in a public place. Mr. Tai did not need permission to take anyone’s photo. It is one thing to politely ask someone not to take a photo and quite another to try to intimidate them from doing so,” he said.
Law aside, seasoned journalists know (or should know) that covering a volatile news event involves a lot more than stubborn repetition of rights. There are times to back off, even when a journalist has a right to be there. There are times to put the camera down and listen for a while, build rapport, and then ask for permission anew. There are plenty of times when it’s best to comply with an illegal order from a police officer to avoid being thrown in jail and “live” to shoot another day. At other times, journalists must stand their ground. It’s a judgment call. But the discussion doesn’t end with evoking the First Amendment (and, that might even be a non-starter in situations like this).
Why belabor the point? Because these kinds of conflicts will only become more common. Everyone is a journalist now, just like everyone is a protester. Freedom of the Press is great until it turns on you. Waving a camera around is cool until somebody gets hurt. And, as we should all know by now, pictures and video can lie, too. There’s always missing context. What the nation needs now is a more sophisticated understanding of issues like privacy, racism, and press freedom. That’s why Prof. Click’s actions are so disappointing. But maybe, just maybe, we can all learn something from this.
“We hope the school administration will investigate this incident and take appropriate disciplinary action if necessary,” Osterreicher. “It should also be used as a teachable moment where the school organizes a presentation to inform students and faculty as to the rights of others. As we have done in other situations around the country, the NPPA has already reached out to the school to offer our assistance in that regard.”
Perhaps it’s already working. Just a moment before I pressed publish on this piece, word arrived that notices are being passed around by the protesters with the very words “teachable moment,” noting the media’s right to be in the public space protesters have occupied.
“Lets welcome and thank them,” the note concludes.
Change has to start somewhere, right?