The Reporters Committee hasn't put up any guidelines on the subject, and the closest report they've done is a Summer of 2000 issue of Media and the Law cover story was on the arrest of reporters covering demonstrations. It might be worth referring your folks to that, even though it isn't precisely on target.
Neither Lucy (Dalglish) nor I know of a situation under federal or state law that gives law enforcement a legally defensible right to seize a tape or require a reporter to erase it. But that does not means they cannot or will not arrest you if you refuse. The remedies in law are all after the fact. In most such incidents, photographers have gotten film back, charges were dropped and police organization has issued an apology. And papers have sometimes recovered legal costs under state law or privacy protection act.
So you'll almost certainly win later in court if there was nothing in your behavior they can use as an excuse for a secondary charge.
So, advice to reporters. Here's my take.
- Be prepared to be arrested.
- Have a discussion now with your editors to respond. It makes sense to have a procedure worked out with counsel, based on federal and state law and any local precedents. And you need to know your publication will support a legal fight over a tape recording.
- Know whom to notify if you are asked to surrender a tape, if that is someone other than your editor. Have that phone number memorized or programmed into your cell phone, or both).
- Be polite and respectful at all times.
- Do not physically resist, but if possible, put the offending recorder in a pocket or purse before the officer can physically seize it.
- If requested to erase the tape, or give up the recorder and/or tape, ask under what legal authority the officer is acting and indicate you would like to talk to your editor or attorney (depending on whom you've been told to contact) before surrendering "the newspaper's" property. That immediately elevates the issue. It's no longer a matter of bullying or intimidating a single reporter, and the potential of a law suit is clearly implied.
- Call your editor/counsel on the cell phone and let him/her talk with the officer.
- If none of that has done any good, tell the officer you will not physically give up the recorder or the tape unless put under arrest.
- If arrested, and the recorder or tape is physically taken, caution the officer against erasing the tape, noting that would be both destruction of property and of evidence in the case. It wouldn't hurt to know what the particular chapter/section of the law is involved so you can mention it in passing.
Pete Weitzel pweitzel@rcfp.org, Reporters Committee for Freedom of the Press
