‘A very ugly day’: Police detain journalists at border
” When cops declare open season on journalists … that will be a very ugly day — and not just for journalists.”
— Hunter S. Thompson, “Strange Rumblings in Aztlan”
NBC reported Wednesday that U.S. officials had made a list of reporters, lawyers and activists — many of them American citizens — that agents intend to detain for questioning at the southern border. Several people on that list told NBC they’d been pulled aside when attempting to cross the border and questioned for what officials called a “national security investigation.” Police were attempting, apparently, to identify “instigators” of violence that broke out back in November when a migrant caravan reached the border, and some of the people who’d been detained told NBC that agents had downloaded contacts and other information off their smartphones in an apparent attempt to try to identify those “instigators” (see NBC’s full story here: https://tinyurl.com/y647g2nn).
That’s bad news. And it’s made worse by the fact that the document includes logos for both the U.S. and Mexican governments, meaning our government is allowing a foreign power to play a role in investigating our supposedly free press.
The authors of the Constitution and the Bill of Rights protected the freedom of the press because they knew there was power in the people’s ability to call the government’s actions into question. The First Amendment exists so that the printed word — or, now, the aired video or radio broadcast — can send the truth to the populace unmolested by government interference.
In short, journalists are protected by the rule of law so they can hold the government accountable on behalf of the people. And that mission is stifled when the government starts detaining journalists and questioning them about their sources. That’s especially true on something like coverage of a mass event like the violence at the border, when there’s no possibility that journalists were relying on classified information to do their reporting.
The law allows police to withhold information about their sources and investigatory practices from journalists — and, by extension, the public — because revealing that information could hinder their work. But the same is true the other way around: If people fear the government might confiscate the information they share with journalists, they’ll be less inclined to share that information, and journalists won’t be able to do the job of holding the government accountable.
The government reveals what it must in court to obtain convictions, but withholds certain information to maintain the integrity of its investigatory abilities. Likewise, journalists reveal what they must in their stories, while holding back information to protect sources so that information can keep flowing. I, for example, have reported stories based on documents whose authenticity I was able to confirm, but did not reveal my source for those documents.
It reminds me of a time I was subpoenaed for a story I did on a kid who admitted to me, in a jailhouse interview, that he’d fired a gun into the air near Battle Creek Central High School. The prosecutor subpoenaed me to testify in the kid’s case. The corporate lawyer for the Battle Creek Enquirer was able to squash the subpoena, but she told me that, were I forced to testify, I would simply tell the court that any information they wanted from me they could read in my published story.
This issue has long been settled in Michigan case law. Back in 2000, the Michigan Supreme Court ruled in favor of the Lansing State Journal and other media outlets in the media’s fight against the Ingham County prosecutor (who is now on probation for soliciting prostitutes) over a subpoena for the State Journal’s unpublished photographs of a riot at Michigan State University. In that case, the high court justices agreed with the Michigan Court of Appeals’ finding that “… a reporter, pursuing the reporter’s profession, is subject to an inquiry by use of investigative subpoena only if the prosecutor seeks to obtain previously published information or if the reporter is the subject of the prosecutor’s investigation. The (law) can be interpreted in no other fashion.”
(You can read a summary of that court case here: https://tinyurl.com/y2gunjup).
In other words, if a reporter is suspected of committing or abetting a crime, the government has free reign to compel that journalist to hand over information. But the government can’t hassle reporters to turn over information on others.
And that, apparently, is what the U.S. government, in partnership with the Mexican government, is trying to do at the border.
Which makes today, in the words of the late, great Hunter Stockton Thompson, “a very ugly day.”
Justin A. Hinkley can be reached at 989-358-5686 or firstname.lastname@example.org. Follow him on Twitter @JustinHinkley.