The problem with press credentials
The First Amendment of the Constitution of the United States provides, in part, that government shall not abridge freedom of the press. Clearly, free expression by journalists, or by anyone with access to the equivalent of a printing press, is a cornerstone principle of our republic.
The challenge to uphold this basic value is, unfortunately, an ongoing struggle.
In 1735 in New York City, John Peter Zenger, an immigrant to New York, published negative articles about the British governor of New York. Zenger was arrested and tried for “seditious libel.” The jury reached a verdict of not guilty, and Zenger became publicly associated with freedom of the press.
Since then there have been many challenges to the freedom of the press, the vast majority of which have upheld the Zenger precedent. But somehow, the basic freedom continues to be challenged around every corner. President Trump repeatedly calls media reports “fake news.” Recent protests against the killing of George Floyd have resulted in reported incidents of assault, arrest and equipment damage against the press. During the protests the NYPD announced that they were suspending the process for issuing new and renewed applications for press credentials — passes that allow members of the media access to media briefings and the like.
Mayor de Blasio responded, “This was wrong. Being in a crisis is no excuse. City Hall has directed NYPD to resume and expedite issuing press passes, and that’s what will happen.” Perhaps the skirmish is over for now. But the position that NYPD holds regarding press credentials underscores the value of a proposal by City Controller Scott Stringer and City Council Speaker Corey Johnson to transfer jurisdiction for issuing those credentials to an agency other than the NYPD and reassess what standards and process are employed to issue the passes.
For sure, the history of the NYPD and how it has exercised authority and jurisdiction over the issuing of press credentials has been unsatisfactory. For example, in 2009, I and other lawyers filed a federal lawsuit against the city and NYPD to get press credentials for three online journalists and to amend the process and standards for obtaining press credentials. The lawsuit resulted in the recognition that online journalists are entitled to press credentials; we were able to secure press cards for reporters from Gothamist who were having difficulty obtaining them. Periodically, I receive reports that NYPD personnel threaten to pull the press credentials from journalists and photojournalists.
The city’s Department of Consumer and Worker Protection would be far better suited to play fair. The DCWP already has authority and jurisdiction over the issuing of numerous city licenses and has what appears to be a more neutral and satisfactory history than the NYPD’s press credentials unit.
But moving media credentialing from the police to a better agency is not enough. We need to ask why press credentials themselves are something government ought to be issuing. In this era, freelance writers abound; countless New Yorkers with Twitter or Instagram feeds could be considered reporters. Bystanders with cellphones have taken countless illuminating videos of police-civilian encounters, doing precisely the work reporters otherwise might.
Why should an individual need to meet the government’s definition of a journalist to be protected as a journalist?
Suppose a freelance photographer without formal credentials or an activist-reporter with a blog or an observer from a local think tank was out during the recent curfew covering the Black Lives Matters protests. Should he or she be arrested while those with official credentials are allowed to do their jobs? Why?
Freedom of the press strengthens us as a city and nation. It helps to keep us informed, and to hold elected and appointed officials, including police officers, accountable. Let’s continue to respect and support journalists and photojournalists to get access to the news. They are our eyes and ears.
Siegel is a civil rights lawyer.