Inauguration Arrests of Journalists: An Affront to Our 1st Amendment Rights

The Guardian has reported that at least six journalists were arrested in the District of Columbia while covering the protests following Donald Trump’s inauguration on January 20, 2017. The journalists arrested include a journalist from Vocativ, a journalist from RT America, a documentary producer, a freelance reporter, a live-streamer, and a photojournalist. Some of the journalists were arrested despite the fact they told the police that they were covering the protests and showed the police their media credentials.

The journalists were arrested along with two hundred others in the hours surrounding Trump’s swearing-in ceremony on the National Mall. USNews reports that the police were beating protesters, reporters, and legal observers with batons and smothering them with pepper spray. Some legal observers, who were clearly identifiable by green hats, were also arrested in the mass arrest.

The D.C. police reported that six officers received minor injuries, and that the crowd was observed breaking windows, lighting fires, burning a limousine, and vandalizing police vehicles. However, the majority of those arrested had nothing to do with the vandalism or injuries that occurred during the protest.

Felony Riot Act

All those arrested have been charged with the felony Riot Act (D.C. Code § 22-1322), which is the highest level offense under the District of Columbia’s public disturbances law. If convicted, they can face ten years imprisonment and/or a fine of up to twenty-five thousand dollars.

In order for an individual to be convicted under the felony Riot Act, the government has to prove beyond a reasonable doubt that:

  1. There was a public disturbance that involved an angry or aroused crowd;
  2. The conduct of the crowd created an actual, serious, and imminent or immediate danger of either: injury to persons or damage to property;
  3. The conduct creating this danger caused public fear or alarm;
  4. The conduct creating this danger either: (a) was accompanied by the use of force or violence against persons of property; or (b) had the clear and apparent danger to cause the use of force or violence to persons or property to erupt;
  5. A group of five or more people, including the individual, participated in the public disturbance voluntarily and on purpose and not by mistake or accident; and
  6. In the course and as a result of a riot either: (a) a person suffered serious bodily harm; (b) or there was property damage in excess of $5,000.

See 1-VI Criminal Jury Instructions for DC Instruction 6.610 (2016). Case law defines a “public disturbance” as “tumultuous and violent conduct” that creates a “grave danger of damage or injury.” U.S. v. Matthews, 419 F.2d 1177 (D.C. Cir. 1969). The law requires that the “public disturbance” be something more than mere noisemaking or minor breaches of the peace. The individual is considered to be participating in the “group” if the disturbance was occurring in his or her general vicinity.

There is not enough information yet to determine if there is sufficient evidence for the government to prove beyond a reasonable doubt that those arrested were guilty of the elements required by the felony Riot Act.

An Affront to Democracy

While it is shocking that over two hundred people were charged with the felony Riot Act as a result of the January 20 protest, it is devastating that any in those numbers were journalists.

The National Lawyers’ Guild’s D.C. branch issued a statement accusing the Metropolitan Police Department of having “indiscriminately targeted people for arrest en masse based on location alone.” The Guild further addressed the violation of the journalist’s constitutional rights, stating: “These illegal acts are clearly designed to chill the speech of protesters engaging in First Amendment Activity.” Politico reports that a class action law suit is already being filed against the D.C. police for the violation of the protesters’ and observers’ constitutional rights.

Freedom of the press and freedom of assembly are values that are fundamental to America’s democracy. While the police have the right to arrest those who commit acts of vandalism, the arrest of the bystanders — and particularly members of the press — is a violation of these individuals’ most valued constitutional rights. Both the police officer’s actions of arresting the individuals and the prosecutor’s actions of charging them with such a serious offense is an affront to our democracy and our freedom.