Compiled by the Silha Center
The trial of former Minneapolis Police Department (MPD) officer Derek Chauvin, charged with second-degree murder, third-degree murder, and second-degree manslaughter after he pressed his knee into the neck of George Floyd, a 46-year-old Black man, who died at the scene in May 2020, began on March 29, 2021. It continued through mid-April. Meanwhile, on April 11, 2021, a Brooklyn Center, Minn. police officer, Kimberly Potter, shot and killed Daunte Wright, a 20-year-old Black man, during a traffic stop. Potter claimed to have accidentally grabbed and used her gun rather than a taser. In the course of these events, protests arose once more in the Twin Cities. Although the initial protests were generally peaceful, a significant law enforcement response followed when tensions escalated. Journalists, photographers, and other members of the press covering the protests faced arrest, use of force, and threats by law enforcement. Law enforcement also issued broad dispersal orders, requiring members of the public and press alike to leave an area, ostensibly in the interest of public safety.
In response, on April 14, 2021, the American Civil Liberties Union (ACLU) of Minnesota filed a motion in federal district court on behalf of a number of journalists, photographers, and other members of the news media seeking a temporary restraining order (TRO) to prohibit arrests, attacks, and threats by police during protests and demonstrations. The defendants included the City of Minneapolis; Minnesota Department of Public Safety Commissioner John Harrington, in his individual and official capacity; Minnesota State Patrol Colonel Matthew Langer, in his individual and official capacity; and their agents, servants, employees, and representatives.
On April 16, 2021, District of Minnesota Judge Wilhelmina M. Wright issued the TRO, which prevented Minnesota law enforcement from “arresting, threatening to arrest, or using physical force — including through use of flash bang grenades, non-lethal projectiles, riot batons, or any other means — directed against any person whom they know or reasonably should know is a Journalist . . ., unless [law enforcement has] probable cause to believe that such individual has committed a crime.” The order also expressly exempted journalists from dispersal orders, including during curfews from which members of the press were already exempt.
Wright weighed the press’ ability to gather news and inform the public against law enforcement interests in general dispersal orders. First, Wright concluded that the plaintiffs “were engaged in constitutionally protected news-gathering activities,” citing the finding in Branzburg v. Hayes, 408 U.S. 665, 681 (1972) that “without some protection for seeking out the news, freedom of the press could be eviscerated.” She also cited American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012), in which the U.S. Court of Appeals for the Seventh Circuit held that the First Amendment “goes beyond protection of the press and self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
Second, Wright rejected the defendants’ argument that “the press had no right to ‘remain in an active dispersal area’” and that such orders “render[] the press’s news-gathering activities no longer a ‘protected activity[.]’” She reasoned that because most of the events transpired in public, the news gathering generally took place on public streets and sidewalks, to which the press had a qualified right of access. Wright further found that the dispersal orders were not “narrowly tailored” because the curfews put in place in Brooklyn Center exempted the press. She added that “preliminary injunctions issued by other courts in similar circumstances have required members of the press to adequately identify themselves, refrain from impeding law enforcement activities, and comply with all laws other than general dispersal orders; and those injunctions have maintained law enforcement officers’ authority to . . . ‘arrest or otherwise engage with persons who commit unlawful acts,’” citing Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 834 (9th Cir. 2020).
Third, Wright found that the law enforcement dispersal orders create a chilling effect on news gathering. She further concluded that there was “a documented pattern of hostility by the State Defendants to members of the press” during racial justice protests dating back to May 2020, and that the defendants “were motivated, at least in part, by the press’s First Amendment activities.”
Finally, Wright concluded that the plaintiffs raised “a legitimate constitutional question,” and that the public interest weighs in favor of the press informing the public about newsworthy events over police dispersal orders, therefore favoring First Amendment principles. She accordingly granted the plaintiffs’ request for a TRO. The full order is available here.
Despite the TRO, law enforcement continued to target members of the press, intentionally or not. On the night of April 16/17, 2021, several members of the news media were detained by law enforcement, who forced them to submit to photographs being taken of themselves and their credentials. Members of the press also faced the use of chemical agents and use of force by police. According to the U.S. Press Freedom Tracker, a database of press freedom violations in the United States and around the world managed by the Freedom of the Press Foundation, on April 17, there were at least seven assaults and three arrests/detainments of journalists. Previously, at least two confrontations between members of the press and law enforcement took place on April 13 during racial justice demonstrations in Brooklyn Center.
In an April 17 interview with USA Today, Adam Hansen, an attorney with Apollo Law LLC who is working on the civil case with ACLU-Minnesota, said law enforcement’s actions directly violated the TRO. “The emergency order requires law enforcement to take certain steps to protect journalists… the order requires law enforcement to leave them alone,” Hansen said. “We absolutely see what happened last night as a violation of the court’s order and we’re doing everything we can to make sure that it doesn’t continue tonight and on into the future.”
On the afternoon of April 17, Ballard Spahr attorney Leita Walker, along with representatives from the Minneapolis Star Tribune, Minnesota Public Radio (MPR), and WCCO, the Twin Cities’ CBS affiliate, met with Gov. Tim Walz, his spokesperson Teddy Tschann, Department of Corrections Commissioner Paul Schnell, Department of Public Safety Commissioner John Harrington, and Minnesota State Patrol Chief Matt Langer in an off-the-record meeting to discuss the confrontations that took place the night before. In an email to Minnesota journalists, national media organizations, free press advocates, and others, Walker wrote that the officials “deeply regretted the misconduct that occurred.” They also “embrace” the TRO, according to Walker. However, the officials acknowledged that “they are struggling with implementing some of what it orders” and having a “unified command” given there are over a dozen law enforcement agencies responding to the protests. The officials also acknowledged that “taking photographs of journalists was a mistake and [that they] will not be doing that going forward.” Finally, Walker provided advice in her email that despite the TRO, “journalists [sh]ould still . . . follow dispersal orders, for their own personal safety, including because not every [law enforcement] agency is subject to the TRO.”
In a letter sent via email following the meeting, Walker, on behalf of 27 news organizations and press advocacy groups, including the Silha Center for the Study of Media Ethics and Law, wrote to the officials to “impress upon [them] the gravity of the misconduct and to memorialize our conversation and the media’s expectations going forward.” Walker asserted that “[t]he First Amendment is clear: journalists have a robust right of access to gather and report the news without fear of intrusion or interference by law enforcement.” She observed, however, that the TRO had been violated repeatedly by law enforcement, especially on the night of April 16/17.
Walker also noted that “the abuses perpetrated by law enforcement officers in the Twin Cities over the past several nights — and going back to last summer — are alarming and, yes, threaten to set [Minnesota] apart” from the rest of the United States, even as political and social tension affect all areas of the country. Additionally, Walker emphasized that “members of the media on the ground in Minnesota take their role in reporting on the events unfolding seriously. They understand the challenges you face in keeping the peace and they do not want to make your job harder. They are professionals who have no interest in ‘being a part of the story’ themselves.” She added, “All we ask is that law enforcement also act reasonably and in a manner consistent with the U.S. Constitution and judicial orders.We look forward to working with you over the coming days and months to ensure that both law enforcement officers and the press are able to do their jobs effectively and that these abuses are not repeated. The full letter is available here.
The same afternoon, the ACLU of Minnesota sent a letter to Judge Wright “to call . . . attention to unfortunate developments that have arisen in this case since the Court issued the [TRO] yesterday.” The letter contended that only hours after the TRO took effect, “the State Defendants escalated the level of assault and harassment of journalists to an intolerable degree.” The letter provided examples, each of which is detailed below. It also noted that counsel for both the plaintiffs and defendants met on the morning of April 17 to discuss the events of the night before. The letter expressed concern that despite the meeting,“the State Defendants remain fixated on ‘grey area’ and/or hypothetical cases, whereas Plaintiffs are merely asking the State Defendants to comply with this Court’s Order and stop the targeted, methodical harassment of members of the press who are clearly identifiable through their clothes, credentials and/or equipment[.]”
The letter concluded by stating that “Plaintiffs appreciate that the Court permitted the State Defendants twenty-four hours to provide copies of the Court’s order to all of their employees. Plaintiffs grow increasingly concerned, however, that the State Defendants do not intend to comply with the TRO without further intervention from the Court.” The letter added that the defendants could also continue to defend actions taken against the press by arguing that the protests create a “chaotic environment” and that protesters can pose as members of the press. The letter therefore requested the opportunity to “advise the Court of our ongoing concerns.” The letter, which was signed by Teresa Nelson, the ACLU of Minnesota legal director, is available here.
In an April 17 statement, the Minnesota State Patrol (MSP) said that “[f]ollowing feedback from media, and in light of a recent temporary restraining order (TRO) filed in federal court, MSP will not photograph journalists or their credentials.” However, the statement noted that MSP would continue “check[ing] credentials so media will not be detained any longer than is necessary.” The statement added, “The MSP has not and will not target media for doing the important work of showing those who are exercising their first amendment rights to express themselves, or those who are engaged in the violent, illegal activity law enforcement is trying to prevent.” The full statement is available here.
In an April 18 statement, the the Minnesota Pro Chapter of the Society of Professional Journalists (SPJ) and the Minnesota chapter of the Asian American Journalists Association (AAJA) “decr[ied] in the strongest possible terms the violent targeting and detention of journalists by law enforcement authorities during ongoing protests in Brooklyn Center.” The statement continued, “A free press is vital to democracy, and ordering the press to leave the area, detaining reporters on their stomachs and photographing their faces, credentials and I.D.s is tantamount to intimidation.” The statement concluded by adding, “Let us do our jobs.” The full statement is available here.
Also on April 18, Gov. Walz was interviewed by WCCO Sunday morning anchor and reporter Esme Murphy. When asked about the treatment of journalists by law enforcement, Walz said, “Apologies are not enough. It just cannot happen. These are volatile situations. And that’s not an excuse. It’s an understanding that we need to continue to get better.. . . Reporters are there to hold police accountable. They’re there to hold protesters accountable. They’re there to make sure this is done in accordance with our law. If they are detained, for any amount of time and held back, they are unable to do their jobs.” Walz added, “The assault on media across the world and even in our country over the last few years is chilling. We cannot function as a democracy if they are not there. My apologies are sincere, but I will tell you what, they will take that apology much more seriously if they see actions.” Walz provided the example of no longer taking photographs of journalists and their press credentials, saying that law enforcement does not have the right to hold journalists in that fashion. He also stated that law enforcement should not detain a single journalist, especially based on their race.
Walz concluded his thoughts on the news media by pledging that “the press needs to be there [at protests],” including news outlets like Unicorn Riot in addition to traditional journalists and media outlets. The full interview is available here.
Jane E. Kirtley, Silha Professor of Media Ethics and Law and director of the Silha Center for the Study of Media Ethics and Law, which is housed within the Hubbard School, also released a statement today. “Members of the public have a First Amendment right to peaceably assemble, and the news media have a concomitant right to report on those peaceful protests. When tensions escalate, and law enforcement responds, it is essential that law enforcement neither impedes nor harasses journalists who provide a window on these activities. As we have seen during the coverage of the Derek Chauvin trial, the public relies on the independent news media to facilitate oversight and understanding of the criminal justice process.”
The Silha Center for the Study of Media Ethics and Law is maintaining a running list of the incidents between the press and police.
Night of April 16/17, 2021:
- On April 17, WCCO reported that law enforcement detained reporter Reg Chapman and WCCO photojournalists. The police ordered the journalists to lie on the ground as they took pictures of them and their credentials. For more information on this incident, see the WCCO report here. A USA Today report is here, and a video of the incident is available here.
- Early in the morning on April 17, USA Today senior video producer Jasper Colt tweeted that law enforcement, “[a]fter dispersing protesters in #BrooklynCenterMN tonight, . . . surrounded members of the media and made us lie flat on our stomachs. They then photographed our faces, credentials and identification before allowing us to leave the perimeter.” The full tweet is available here.
- Minneapolis Star Tribune reporter Liz Sawyer similarly tweeted that members of the news media were “ushered to a checkpoint where state patrol is taking pictures of every journalist’s credentials and face.” A video depicting what took place is available here.
- In a separate tweet, Star Tribune video journalist Mark Vancleave posted a video depicting Sawyer and fellow Star Tribune photographer Susan Du “being ‘processed’ by Minnesota State Patrol after documenting mass arrest tonight in Brooklyn Center.” A video of the interaction is available here.
- According to the ACLU of Minnesota’s letter to Judge Wright, [d]uring this incident, Minnesota State Patrol threatened [photojournalist] Chris Tuite with arrest multiple times, thrust a can of pepper spray in his face, and grabbed him with such force that it ripped his clothes.” Photojournalist Chris Juhn was similarly detained and forced to submit to a press credential check and photographs.
- Vancleave also tweeted that photojournalist Tim Evans “was punched in the face by an officer while trying to present his press credentials to law enforcement.” Vancleave included a screenshot of Evans’ recollection of the incident, in which he wrote, “The sheriff sprayed me directly in the face with mace. He tackled me to the ground as I was telling him I’m press. When I was on the ground, I showed him my badge . . . and he punched me in the face, then tore off my badge and threw it in the dirt. Another officer came over, I told him I was press and then he smashed my head into the ground.” The full screenshot of Evans’ account is available here.
- According to an April 17 tweet by freelance photographer Alex Kent, Agence France-Presse video correspondent Eléonore Sens and an unidentified member of the press were “maced by Minnesota Police after an unlawful assembly [was] declared[.]” The full tweet, which includes a photo of the incident, is available here.
Night of April 13/14, 2021:
- On April 16, Adam Gray, chief photographer for South West News Service, based in the United Kingdom, tweeted that he was “rushed whilst leaving, cuffed, photographed and put in a squad car and charged/citated [sic] with failure to obey an order” on April 13. He added that on the night of April 16, “Law enforcement in #BrooklynCenter tonight punched, pepper sprayed, chased, detained and photographed media as they Bull rushed protestors.” Gray’s series of tweets are available here.
- On April 13, Star Tribune reporter Andy Mannix tweeted that law enforcement “was firing a lot of projectiles” as demonstrations were approaching their end for the night. Mannix stated that one less-lethal munition “bounced off the bottom of [his] boot as [he] was walking away.” Mannix’s full tweet is available here.
- According to attorney Leita Walker in her email to Gov. Tim Walz and other Minnesota officials, CNN producer Carolyn Sung was “thrown to the ground and arrested by state troopers . . . while trying to comply with a dispersal order.” One trooper reportedly yelled at Sung, whose primary language is English, “Do you speak English?” Despite repeatedly explaining that she was a member of the news media, Sung was “placed in a prisoner-transport bus and sent to the Hennepin County Jail, where she was patted down and searched by a female officer who put her hands down Sung’s pants and in her bra, fingerprinted, electronically body-scanned, and ordered to strip and put on an orange uniform.”
- In a series of tweets on April 17, Star Tribune reporter Ryan Faircloth described how law enforcement surrounded a vehicle in which New York Times photojournalist Joshua Rashaad McFadden, a Black man, was a passenger. Faircloth quoted McFadden, who said, “"They’re hitting me, they're hitting my camera as if they’re trying to break my camera lens . . . telling me to get out, but I clearly couldn’t get out because now they’re blocking the doors.” According to Faircloth, only after “a white journalist [told] the officers that McFadden was indeed a journalist for them to let him go.” McFadden added, “I am assuming because I am a Black photographer that they would not believe me or look at my press credential until who I was with said, ‘Oh, he’s with the Times.’” Faircloth’s thread is available here.
Night of April 12/13, 2021:
- Star Tribune video journalist Mark Vancleave tweeted on April 17 that on the night of April 12/13, he was shot in the hand by a rubber bullet fired by law enforcement. According to Vancleave, “[t]he impact broke [his] ring finger in two places requiring surgery.” He added, “I won’t be able to pick up my camera again for at least six weeks.” A photo of the injury and a video of the incident is available here.
- In her letter to Minnesota officials, including Gov. Tim Walz, attorney Leita Walker noted that “[t]wo separate photojournalists on assignment for The New York Times were harassed by officers.” In one case, “a Minneapolis State Patrol Captain recognized the photojournalist, rushed out of a police line, and grabbed him. The officer then pulled the journalist behind the police line where another officer held his hands behind his back and took his phone. When the journalist asked ‘why,’ the officer said: ‘Because that’s our strategy right now.’” In the other case, a police officer “used a chemical irritant against a protestor next to the journalist” before “lung[ing] forward and aimed the irritant directly at the journalist from a distance of approximately 4-5 feet.”
This report is compiled by Scott Memmel, postdoctoral associate, and will be updated as the situation warrants. For further information, or to provide additions or corrections, please email Silha Center Director Jane E. Kirtley at [email protected].