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Why the news media may not want to share pictures of Capitol riots with police

Images captured by the media of the Capitol storm could help law enforcement agencies identify attendees. Evelyn Hockstein / For the Washington Post via Getty ImagesThe images of the siege of the United States Capitol on January 6 are likely to be remembered by many Americans. Photos and videos posted in print, online and on television showed protesters breaking windows to enter the building. They sat at a desk in Spokeswoman Nancy Pelosi’s office and faced an outnumbered Capitol police force. However, it may be the unpublished images that are of the greatest interest to law enforcement agencies as they track down and arrest as many rioters as possible to break a range of laws. The agencies may require or require news organizations to hand over their unpublished material, which would force the media to make unpleasant decisions. Journalists argue that if they are forced to divulge confidential sources or pass on news information they have collected but not yet published, it will undermine the trust of sources and the public who doubt the independence that journalists often claim. Journalists serve the public, not the government. But is it better for the public to bring criminals to justice than to protect a journalistic principle? Conflicts of Interest Many of the people involved in the Capitol attack have been identified and arrested, some using photos released by the media, as well as selfies and videos taken by protesters. If the search for more suspects continues and authorities seek unpublished images from the news media and media outlets willing to work together, it could put journalists at risk when reporting future protests. Protesters may view them as potential informers and physically attack them in order not to be identified later. If the outlets resist and force the authorities to issue subpoenas for the pictures, it is unlikely that the media’s reputation will improve among a suspicious public as it appears that the news organizations are obstructing justice. Equipment used by media teams damaged in clashes after Trump supporters breached the security of the U.S. Capitol. Tayfun Coskun / Anadolu Agency via Getty Images Dangers of Reporting Protests Reporting riots is always dangerous for journalists, but the situation at the Capitol was special. The demonstrators supported President Donald Trump, who the media has often referred to as an “enemy of the people”. Someone carved the words “Murder the Media” on a door in the building and news outlets lost thousands of dollars in equipment when it was stolen and smashed by protesters. Protests after George Floyd was killed in police custody last summer, several reporters were injured and possibly attacked by protesters and police officers. In Seattle, police cited the Seattle Times and several television networks in June 2020 to obtain unpublished images of protests to identify individuals suspected of criminal activity. The news organizations challenged the subpoenas under the Washington State Shield Act, which protects journalists from naming confidential sources or disclosing unpublished information to state agencies. The Reporters ‘Committee on Freedom of the Press submitted a brief statement on the position of the news organizations, arguing that enforcing the subpoena would endanger journalists’ safety and editorial independence. A judge ruled against them. The police later dropped the subpoenas as the judges’ decision on the judge’s decision would likely take too long in the media. Journalists often fight subpoenas for their materials. kolderal / Moment / Getty Images Legal Protection for Journalists Given that the Capitol siege took place on federal government property, the incident is under federal investigation, which means legal challenges of subpoenas would likely end up in federal court. This complicates matters. Forty states have shield laws, but there is no federal shield law. In 1972 the US Supreme Court ruled that journalists have no first adjustment right to refuse to disclose the identity of sources in response to a valid subpoena from the grand jury. However, Branzburg’s ruling against Hayes was so divided that many lower federal courts limited their reach to grand jury situations. This means journalists have a better chance of winning if they are summoned to provide evidence in civil or criminal proceedings. The January 6th incident does not involve any confidential sources. Some federal courts have ruled that non-confidential material collected from journalists, including unpublished images, is also protected from disclosure, but the protection is typically less comprehensive than confidential material. Given the seriousness of the incident at the Capitol, which resulted in five deaths, it would be difficult for journalists to successfully argue that their interests are more important than those of law enforcement. I have been studying the law on journalists and their sources for almost 24 years. To the best of my knowledge, US journalists have rarely argued that they could be exposed to physical danger if they were forced to share information they had gathered. The closest parallel is a Washington Post reporter who successfully fought a summons from a war crimes tribunal 20 years ago for fear of retaliation in foreign conflict areas. One possible solution would be for the news agencies to post any images that have not yet been posted on their websites. That way, both the public and law enforcement agencies would have access without a bloody legal battle over making the images available to the police only. A bonus would be that the public would get even more information about what happened. This article was republished by The Conversation, a non-profit news site dedicated to exchanging ideas from academic experts. It was written by: Anthony Fargo, Indiana University. Read more: The Capitol Uprising challenged how US media frame riots and shape public opinion. How should you read unnamed sources and leaks? Anthony Fargo does not work for any company or organization that would benefit from this article, does not consult any company or organization that would benefit from this article, and has not disclosed any relevant affiliations beyond her academic appointment.

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