Legal Commentary

At CoOp, Tim Zick links to a news report (via the First Amendment Center) that the City of St. Paul announced that charges were being dropped against a number of journalists arrested during the RNC earlier this month. Mayor Chris Coleman announced, apparently with great self-satisfaction, that this move shows "the values we have in St. Paul to protect and promote our First Amendment rights to freedom of the press." Of course, can we think of a better way to protect and promote the freedom of the press? Yeah, maybe by not arresting journalists in overbroad mass arrests.

Additional money quote from Mayor Coleman (no doubt running for state-wide office soon): "At the scene, the police did their duty in protecting public safety. In this decision, we are serving the public's interest to maintain the integrity of our democracy, system of justice and freedom of the press." In other words, the mayor is quote happy to strike the balance by arresting everyone at the time--halting public expression, media reportage of that expression, and media reportage of the halting of that expression--then using charging decisions to avoid the obvious constitutional problems. Tim calls this "a sort of preemptive strike used to control mass contention." And as I said last week, this is entirely a product of the incentive structures created by the § 1983 liability regime. The City and its officers face no liability (or at least no meaningful monetary exposure) for this strategy. Even if the reporters sued, got past officer qualified immunity, and could establish that all of this was part of city policy, the damages available for such a First Amendment violation are too small to be meaningful.

And one final point on the RNC. A lot of attention (and criticism) has been focused on the arrest of journalists, as though this somehow reflects a unique First Amendment concern with St. Paul's strategy. And, at some level, it does, if we see the freedom of the press as protecting broad informative purposes. And, as Tim notes, the City has adopted a broad definition of "press" in dealing with arrestees. But too much focus on the press should not be allowed to obscure the fact that St. Paul arrested hundreds of peaceful protesters who did nothing more than try to make their voices heard in the public square.