A free press in 'time of war' — or at home — is not the enemy

August 13, 2015

By Gene Policinski
Inside the First Amendment 

Journalism is neither criminal activity nor the action of an enemy, at home during domestic strife or overseas in a time of war.

Still, charges have been brought in Ferguson, Mo., against two journalists a year after they were detained in a McDonald's restaurant by police in the first days of violence during protests over the police shooting and death of Michael Brown.

And a new, 1,176-page Department of Defense "Law of War" manual distributed in June opens the door for U.S. military commanders — and, ominously, for repressive regimes around the world — to deem reporters who operate outside of official channels and who resist censorship as "unprivileged belligerents," military-speak for spies and saboteurs.

Reporters doing their jobs may be inconvenient or irritating, or witnesses on behalf of the public to activity that is later challenged as illegal, unwise or just plain embarrassing. None of that ought to be subject to official sanction, arrest or worse.

And to connect that Orwellian "unprivileged belligerents" turn-of-phrase with journalists just buys into the kind of despotic thought process that has aWashington Post reporter facing a secret trial in Tehran, accused of espionage and distributing propaganda against the Islamic Republic for simply doing what journalists do: Gather news and fairly report the facts.

Let's clear out the easy criticisms: The issue is not actions that clearly interfere with lawful police activity, inflame tense situations to create a sensational atmosphere, that directly or intentionally place bystander, police, or American military lives at risk or aid an enemy nation.

Civil authorities and military commanders ought not to have a right — or think they have a right, based on fuzzy guidance from above or by virtue of trained bluster and bravado — to ignore, override or punish journalists in the performance of their legitimate, constitutional "watchdog" role protected in the U.S. by the First Amendment.

A year ago in Ferguson, in one of the first nights following the police shooting and death of Brown, reporters for The Huffington Post and The Washington Post were working in a McDonald's restaurant. Just in the last few days, the pair was charged with trespassing and with interfering with a police officer's performance of his duties. Police say the journalists didn't leave the restaurant fast enough.

About two dozen journalists have been arrested while reporting on the continuing Ferguson protests. Officials recently settled at least one lawsuit brought by a reporter who was arrested, agreeing to pay $8,500 and dropping three charges. At the same time, similar charges against another reporter were dropped.

Editors at the The Huffington Post and The Washington Post have criticized police conduct in the arrests of their staffers. Washington Post executive editor Marty Baron said the decision to pursue charges "represents contemptible overreaching by prosecutors who seem to have no regard for the role of journalists seeking to cover a major story and following normal practice."

Police and prosecutor conduct around events in Ferguson also seems part of the artful pattern that persists in police actions nationwide, around not just civil disorders but also protests at political conventions or economic summits, of "arrest now, clean it up later" — often with an accompanying financial settlement at cost to taxpayers.

The new U.S. military manual represents a less direct — but just as misplaced — threat to journalists doing their jobs. A New York Times editorial on Aug. 10 also said it would make journalists' work "more dangerous, cumbersome, and subject to censorship."

The manual says that U.S. armed forces may withhold protection, censor reports and even deem journalists as "unprivileged belligerents" — which it elsewhere defines as including "spies and saboteurs," with fewer legal rights in war zones than the armed opposition forces. Driving home a point, the manual says that "reporting on military operations can be very similar to collecting intelligence or even spying."

The Times's editorial notes that "to cover recent wars, including the civil war in Libya in 2011 and the war in Syria, reporters had to sneak across borders, at great personal risk, to gather information." The editorial also properly says, "Authoritarian leaders around the world could point to it to show that their despotic treatment of journalists — including Americans — is broadly in line with the standards set by the United States government."

The 1,176-page manual's introduction says it "reflects many years of labor and expertise, on the part of civilian and military lawyers from every Military Service. It reflects the experience of this Department in applying the law of war in actual military operations, and it will help us remember the hard-learned lessons from the past."

I would add that the manual also ignores the very "hard-learned lessons from the past" — from the world wars to Vietnam to the Gulf wars — that more news reported independently bolsters the public's understanding and support for the U.S. military, not the reverse.

More than two decades ago, in explaining the Defense Department's rationale then for journalists to "embed" with active U.S. combat units, officials got it right: "We need to tell the factual story — good or bad — before others seed the media with disinformation and distortion."

The "fog of war" — or the confusing circumstances surrounding civil disorder — may well make confrontations inevitable between authorities and a news media charged with closely and critically observing and reporting on them.

But that's no reason for poor judgments, or for policies set in the light of day and calmer times, which encourage or institutionalize a disregard for the needed presence of independent journalists and a free press.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org. Follow him on Twitter: @genefac.

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