California police violate press freedom law ‘right and left’ during protests

On May 6, 2024, police arrested independent videographer Sean Beckner-Carmitchel as he was filming the detention of protesters on the University of California, Los Angeles, campus.

Just days earlier, police threatened reporters at the Daily Bruin student newspaper with arrest while they were covering the UCLA encampment and denied them access to areas where protests were occurring.

And shortly before that, police also arrested TV journalist Adelmi Ruiz while she was covering a protest at California State Polytechnic University, Humboldt.

This isn’t supposed to happen anywhere in America, but especially not in California, where it’s explicitly against the law for police to intentionally interfere with journalists covering a demonstration, prohibit journalists from entering areas officers have closed around a protest, or cite reporters for failing to disperse or similar crimes related to the closure.

To find out more about how this California law, Penal Code Section 409.7, works and how reporters can use it, the Freedom of the Press Foundation (FPF) spoke via email to Susan Seager, an adjunct professor of law at University of California, Irvine School of Law. A former journalist, Susan is the founder and director of the press freedom and transparency practice at UC Irvine’s Intellectual Property, Arts, and Technology Clinic.

In your view, are California police complying with the law when it comes to allowing journalists to cover recent pro-Palestinian protests?

No, the police have been violating Section 409.7 right and left during the protests and police raids on campus encampments. The police are also violating the First Amendment right of the press to film public protests and police in public. The reporters for the Daily Bruin should not have been threatened with arrest for covering the encampment on their campus and police actions.

When University of California police arrested Beckner-Carmitchel while he was filming UC police arresting students in a UCLA parking garage, that arrest violated Section 409.7, Sean’s First Amendment right to film police, and his Fourth Amendment right to be free of unlawful arrests. After I fired off a quick email to UCLA police, the school’s comms department, and the UC administration that Sean’s arrest and jailing violated Section 409.7, UCLA released him later that day. So the law worked to free Sean, but he should have never been arrested and jailed in the first place.

They also took away his cellphone, but I told UCLA that using a search warrant to search his phone would be illegal, and they gave it back within a few hours.

At the University of Southern California, the campus police and Los Angeles Police Department violated Section 409.7 earlier this month when they blocked student journalists and faculty from filming the police raid on the encampment and threatened to take away some of the students’ press passes.

However, Section 409.7 worked very well on May 15, 2024, at UC Irvine, where the press office worked closely with the local law enforcement to make sure journalists had access.

Can you explain why Section 409.7 was enacted and what it does? And tell us about any cases you’re aware of where California journalists have invoked it to try to prevent law enforcement from dispersing them from protests. Has it worked, and why or why not?

Reporters pushed for the passage of Section 409.7 after many reporters were arrested, shoved, and shot with munitions by police while covering the Black Lives Matter protests (in 2020).

Before it was passed, California law said that reporters were legally permitted to cross behind police lines during public disasters without being arrested, but it didn’t say anything about public protests where police declared an unlawful assembly and ordered everyone to disperse. So some reporters were getting arrested for failure to disperse when they were filming protests and police.

Section 409.7 says that where police “establish a police line, or rolling closure at a demonstration, march, protest, or rally where individuals are engaged in activity” protected by the First Amendment and California Constitution, a “duly authorized representative of any news service, online news service, newspaper, or radio or television station or network may enter the closed areas.” The law says that police cannot arrest reporters for “failure to disperse,” violating a curfew, or filming police.

If a reporter is arrested, the reporter has the right “to contact a supervisory officer immediately for the purpose of challenging the detention, unless circumstances make it impossible to do so.”

Section 409.7 doesn’t prevent police from “enforcing other applicable laws if the person is engaged in activity that is unlawful.”

Los Angeles journalists have reported that, at least in some instances, they have cited Section 407.9 to officers, and the officers allowed them to pass through police lines during public events. But police violated the law during the recent campus protests.

The problem is that law enforcement agencies hate it when they are filmed doing their jobs. It’s just that simple. Many officers see the press as the enemy. And they don’t get punished for breaking the law when it comes to the press.

Many of the recent pro-Palestinian protests have taken place on college campuses, which can be either public or private institutions. Does Section 409.7 apply on private property, like a private college campus? What triggers the application of the law?

Section 409.7 applies to both public and private campuses, although it applies differently to each.

For public campuses like UCLA, Section 409.7 applies in full force. It gives protection to both the mainstream press and UCLA student journalists, just as it would on a public street, since the campus is a public institution and the campus is open to the public.

But for private schools, the law might not protect mainstream reporters if they have been barred from entering the campus and the school could argue that they are trespassing on private property, and Section 409.7 does not protect against arrest for trespassing. But if the school allows mainstream reporters on campus, then the law fully protects them.

Section 409.7 also fully protects student journalists and faculty on their private campuses because they have a right to be on their own campus. Section 409.7 protects those student journalists and faculty from arrest when they are trying to film and report about the protests and police actions.

How should California journalists covering protests assert their rights under Section 409.7? If police close an area where protests are occurring and start attempting to disperse the press, how should journalists respond in the moment?

If there is time before a protest, reporters should contact the local police department and campus police department and ask that a public information officer be sent to the scene in advance and be available to educate officers on the rights of reporters to go past police lines under Section 409.7 and mediate between the police and press.

Live tweeting and live streaming video are also effective in putting the police on blast when they are breaking the law by arresting, threatening, or pushing reporters away from the protests or scenes of arrest.

Journalists should wear some kind of press pass on a lanyard. If you don’t have a local police-issued pass, it’s a good idea for your news organization (student news organizations included) to create your own press passes with the reporter’s name, photo, news website, and cell number for a news supervisor who will be on call at all hours. Freelancers should seek photo press passes from the news orgs that send them to protests. “Duly authorized” means freelancers need to show they were sent by some news organization. Press passes issued by journalism trade groups or journalism affinity groups can be adequate in some jurisdictions.

If police violate Section 409.7, what recourse do journalists have and what steps do you recommend they take?

Reporters should ask local journalism groups to mobilize and issue immediate public statements condemning arrests of reporters if the reporters were arrested for simply doing their job. Local journalist groups should issue public statements urging prosecutors not to press charges against arrested reporters. Public campaigns can be very effective.

Reporters who are arrested should consider filing an officer misconduct complaint against the police department and participate in the investigation. However, some civil rights lawyers advise against this because they see the internal affairs process as weighted in favor of the officers.

Arrested reporters who are not criminally charged can file a civil rights lawsuit against the city or county that employed the arresting officer, arguing that the arrest violated their First Amendment right to film protests and police and violated their Fourth Amendment right to be free of unreasonable arrest. In California, reporters could also sue based on state law.

UC Irvine School of Law is co-counsel on an ongoing civil rights lawsuit brought by then-Knock LA reporters Jon Peltz and Kate Gallagher against the Los Angeles Police Department for arresting them for failure to disperse while they were simply filming and reporting about a police raid on a homeless encampment at Echo Park Lake in March 2021. They were arrested before Section 407.9 took effect, but they argue that the arrest violated their rights under the First and Fourth Amendments. They were never criminally charged.

The best way to get a local police department to obey Section 409.7 is to have a number of journalists who are arrested by one police department file a class action lawsuit against that department and seek a court injunction ordering the department to obey the law. But this requires more than just a handful of arrested reporters.

Editor’s note: The text has been updated to clarify that press passes issued by journalism trade or affinity groups are recognized by authorities in some jurisdictions.