Free Speech

Who Is Protected As a Journalist? Everybody, Suggests Court Ruling.

Journalism is an activity shielded by the First Amendment, not a special class or profession.


When are people observing official doings real journalists and when are they annoyances to be ushered away by the cops? A recent federal court decision supports the idea that First Amendment protections extend not to journalists as a special class, but to anybody engaged in journalism. This is good news for Justin Pulliam, a citizen journalist suing the Fort Bend County, Texas, sheriff's department, but it should also be welcomed by anybody interested in free expression and holding government accountable.

"Justin Pulliam, a citizen journalist arrested while covering Fort Bend County Sheriff's deputies, won a first-round victory in his civil rights lawsuit brought by the Institute for Justice (IJ)," the organization announced this week. "A federal district court rejected the sheriff's attempt to dismiss the case. Pulliam will have the opportunity to hold the sheriff and his deputies responsible for violating his First Amendment rights to record the police and to be treated the same as established media or other members of the public."

Targeted for Doing Journalism

U.S. District Judge David Hittner of the U.S. District Court for the Southern District of Texas summarizes matters well when he opens his order with the words: "This is a civil rights case. Plaintiff Justin Pulliam ('Pulliam') is an independent journalist who films activities of public interest, including police interactions with civilians." That is, the plaintiff in the case is a journalist because he does journalism by filming police activities and uploading them to Corruption Report, his YouTube channel. This is important because Pulliam filed his lawsuit after his ejection from a press conference in July 2021 because he was "not media" and, in December of the same year, being arrested while recording police interaction with somebody experiencing a mental health crisis.

"Based on the facts alleged in the complaint," wrote Judge Hittner, "it appears Pulliam was singled out and arrested for exercising his rights under the First Amendment."

That is, Pulliam is protected by the First Amendment not because of a special status, but because everybody is.

"The heart of the First Amendment is the right to speak out about government, and Fort Bend County does not get to pick and choose who will cover their activities," commented I.J. attorney Christie Hebert.

The case still has to go to trial, so Pulliam hasn't yet won. But he demonstrated that constitutional rights are at stake which precludes the sheriff's department's claims of qualified immunity. That's an important step forward for the case at hand, but also a big win for Americans exercising their right to scrutinize government. We're at a moment when many name-brand media outlets are very closely aligned with the people exercising coercive power over our lives, and some of the best watchdogging comes from those who, like Pulliam, live outside the professional journalism club. Their efforts are often unwelcome.

The Perils of Journalists As a Special Class

"It's scary to think of the government as the final arbiter of what separates a real journalist from a fake one," Steven Greenhut warned in a 2013 Reason piece. "It's typical of government to want to put everything in a box, which makes it so much easier to control, regulate and subsidize (just another way to control it)."

Greenhut wrote when the "who is a 'real journalist?'" discussion was well under way, but before Julian Assange had spent years behind bars because government officials decided to categorize embarrassing disclosures about their activities by his organization, Wikileaks, as espionage rather than journalism. Assange has been assailed by many elite journalists who clearly identify more closely with government than with those who put the government under a microscope.

"The case of Mr. Assange, who got his start as a computer hacker, illuminates the conflict of freedom and harm in the new technologies, and could help draw a sharp line between legitimate journalism and dangerous cybercrime," sniffed The New York Times editorial board in 2019. "The administration has begun well by charging Mr. Assange with an indisputable crime."

"As journalists we're particularly sensitive to the fact that there was a time, not so long ago, when journalists were not as much from that elite class like the people who run our government have always been," Reason editor-in-chief Katherine Mangu-Ward noted during a Reason Roundtable podcast conversation this week about the confluence of legacy journalism and the political class (if you're not a regular listener, you should be!). It's an issue that's not going away, as demonstrated by the fulminating at name-brand outlets over a court order limiting the government's ability to pressure online platforms into suppressing ideas disfavored by politicians.

"A federal judge on Tuesday blocked key Biden administration agencies and officials from meeting and communicating with social media companies about 'protected speech,'" huffed a report in The Washington Post. "The Donald Trump-appointed judge's move could undo years of efforts to enhance coordination between the government and social media companies."

Left in the hands of self–styled professionals, it's hard to envision a future for journalism that involves much actual journalism. Public relations and glad-handing, sure, but little to unsettle those in power.

Leave Journalism to the Non-Professionals

"Many people do 'a bit of journalism' just as some do 'a bit of politics' or 'a bit of art'. Some of them do it well. Some not so well." James Alan Anslow, a British academic specializing in media observed a decade ago. "Journalism is an activity which, when pursued with vigour and executed with skill in a spirit of disruptive yet creative mischief, should represent the antithesis of 'professionalism,' of regulation. It should be the enemy of any contracted code of behaviour outside those codes imposed on all citizens and enforced by criminal and civil law."

And that brings us back to Justin Pulliam, who does "a bit of journalism"—enough to get under the skin of the local sheriff, judging by his ejection from press conferences, arrest, and subsequent lawsuit. Maybe he does it well, and maybe he doesn't—it doesn't matter. What does matter is that a federal judge recognized that his activities are protected by the First Amendment, and that he has recourse against officials who try to stop him from observing and reporting on their conduct.

All of us have reason to root for Pulliam. He was pretty clearly targeted because he annoyed local officials and law enforcement with his coverage of their conduct. If that is the case, it makes him a victim of official misconduct. We should also root for him because he's helping to answer a question that's increasingly important in the modern world: Who is entitled to the protections that come with being a journalist? The correct answer is that we are all entitled to those protections when we do journalism.