By Charlie Deitch
Pittsburgh Current Editor
On August 1, an individual wearing a Donald Trump “Make America Great Again” hat showed up at a protest in Shadyside and the hat ended up on the ground in flames. I was curious how it got there and I wasn’t the only one.
I found out what happened by following the Twitter feed of freelance photojournalist Ed Thompson. Thompson does quite a bit of work for Pittsburgh Current, but sometimes he is out working for other companies or he’s out on his own as a freelancer hoping to sell some of his images. It is, after all, how he makes his living.
Apparently Pittsburgh Police detectives also saw Thompson’s feed and were interested in how the hat ended up on the ground and in flames. I suppose they thought maybe a crime had been committed and that Thompson might be just the guy to help them out.
He wasn’t. But that didn’t mean he wasn’t worried about future calls from the police.
“They called me up and I said I didn’t want to give them my images of the altercation,” Thompson told me recently. “The cop replied, ‘so you don’t want to turn over your images?’ I said no and a short time later another detective called me and said, “are you sure you don’t want to turn over your images? And I said no again.
“They wanted photos of the altercation that took place. I don’t have them and even if I did I would never turn them over. You can’t do your job properly if people think you’re all of a sudden working for the police. We’re not cops, we’re journalists. It caught me off guard.”
But as a freelancer, in particular, Thompson said he wasn’t sure if he had the same protections that photographers from one particular company has. If the police ever showed up at his door, would he have to hand them over? And that goes for media companies as well. Most people think the state’s Shield Law would protect them but that only protects a journalist from revealing a source. Images aren’t covered under Shield says Madeline Lamo, a staff attorney with the Reporter’s Committee For Freedom of the Press. But that doesn’t mean they aren’t protected, she says.
Aside from Shield laws, reporters also have something called reporter’s privilege which is derived from the First Amendment and protects reporters’ work product, Lamo says. So, in short, if you are a journalist, freelance or otherwise, you don’t have to give photos or anything else to the police. Well, at least not right initially.
The privilege provision is a “qualified privilege.” That means the police can issue a subpoena but then they still have to prove that the reporter’s privilege doesn’t apply.
“There are certain criteria that the police have to meet like showing it’s relevant to the case or that they have exhausted all other avenues to get the evidence,” Lamo says. “But you have the opportunity to object or oppose the motion. Even if you get a subpoena, that certainly doesn’t mean you should just hand over your work.”
There’s something problematic about police agencies trying to use a journalist’s work as evidence in cases or even to make cases. For example, how many times have we seen a blurb on TV news that the police are asking for help from the public to identify suspects caught on security cameras. Recently, we have seen these kinds of tactics used.
The problem is, it makes it impossible for a journalist to do their job if the people we’re covering think we’re merely a surveillance arm of the police. It also doesn’t help when news agencies, usually TV stations, readily turn over their footage. In a lot of cases it’s to curry favor with their police sources.
There is an attack on reporter privilege nationwide. In Seattle, police are demanding that five media companies turn over all unpublished photos and videos of protesters so they can use it as an investigative tool. The companies have declined and are fighting the subpoenas. But the scariest part of all is that a judge sided with the police and ordered the work product to be turned over. The companies are appealing, but a judge ruling that way is a scary thing.
“The inability to protect work product and sources would kill newsgathering. It would hijack the independent press,” Lamo says.
What I can guarantee right now is that this paper will not share information, images, or video with the police. And if we are issued a subpoena, we will challenge it to the end. And even then, to be honest, we still won’t turn it over.
All we have in this business is our integrity and that’s not something we will ever sacrifice