Sep 11, 2016 Journalist reports on assault against Dakota Access Pipeline protestors and asserts 1st Amendment against trespass prosecution
Whatever anyone thinks of her (bias and all), Democracy Now‘s Amy Goodman does not easily shy away from risks and physical danger, and she has repeatedly dug into news stories, advocated against corporate money interfering with getting out the news, and refused to be an embedded journalist. Among particular note is Goodman’s recounting how she narrowly avoided becoming a victim of the Indonesian military’s 1991 massacre (two years after my second and last visit to Indonesia’s Java island) of East Timorese protestors when she insisted she was a United States citizen.
On September 8, 2016, an arrest warrant was issued against Ms. Goodman (see court docket), apparently arising from her September 3 coverage of anti-Dakota Access Pipeline demonstrators breaking through fencing, which includes coverage of some demonstrators then getting bitten by dogs let loose by private security, who also allegedly pepper-sprayed some demonstrators (see video here). Goodman retorted: “This is an unacceptable violation of freedom of the press… I was doing my job by covering pipeline guards unleashing dogs and pepper spray on Native American protesters.”
While Goodman may have some good defenses against the trespassing charge, will First Amendment free press protections serve her defense?
Certainly, the public was well served to have available Democracy Now’s reporting and video coverage of private security letting dangerous dogs loose on demonstrators and pepper-spraying some of them. Native American grievances against the Dakota Access Pipeline are very important for the public to know about and consider. The Obama Administration itself weighed in on the pipeline controversy on September 9, 2016.
Amy Goodman is charged under North Dakota’s misdemeanor criminal trespass statute, which provides in relevant part:
“§ 12.1-22-03 An individual is guilty of a class B misdemeanor [carrying up to thirty days in jail] if, knowing that that individual is not licensed or privileged to do so, the individual enters or remains in any place as to which notice against trespass is given by actual communication to the actor by the individual in charge of the premises or other authorized individual or by posting in a manner reasonably likely to come to the attention of intruders. The name of the person posting the premises must appear on each sign in legible characters. ..An individual is guilty of a class B misdemeanor if that individual remains upon the property of another after being requested to leave the property by a duly authorized individual.”
Beyond any claim of First Amendment rights, Goodman’s criminal defense lawyer will be able to explore arguments that any people who posted any no trespassing signs or told people not to come onto the fenced-off land, were without authority to make such a demand. An even broader question is who has ownership and authority over the land. Beyond that is the importance of challenging whether Ms. Goodman knowingly and intentionally entered land that she knew she was prohibited from entering, whether through sufficient signage or oral warning.
As to First Amendment press freedom claims, I am not aware of any applicable court cases that provide First Amendment press freedom protection for journalists charged with criminal trespassing on land. Nevertheless, police and prosecutors should consider one’s status as a reporter in using discretion whether to charge a reporter with trespass in the first place. Articles on the lack of First Amendment caselaw protecting journalists charged with criminal trespassing are here, here, here and here.
Thanking Amy Goodman for covering this very important Dakota Access Pipeline story.