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On Inauguration Day, police arrested six journalists who were covering protests in Washington, D.C.

The reporters were hauled before Superior Court judges and each charged with felony counts of “inciting to riot” and cause bodily harm, a crime punishable up to a maximum of 10 years in jail and fines of up to $25,000.

Those arrested were Aaron Cantu, a freelance journalist who’s written for Al Jazeera; Evan Engel, a senior producer at the news website Vocativ; Matthew Hopard, an independent journalist and livestreamer; Shay Horse, an independent photojournalist; Jack Keller, a producer for the web documentary series Story of America; and Alex Rubinstein, a reporter with RT America.

After eight days, prosecutors dropped the felony charges against four of the six — Cantu and Horse still face the prospect of a lengthy and costly criminal defense — and yet many questions remain about why any were arrested in the first place.

Crackdown on the First Amendment

The arrests occurred as each was documenting street demonstrations near the intersection of 12th and L Street in NW Washington; during this time a small group of protesters broke office and storefront windows. Shortly thereafter police barricaded in a large number of people, including journalists, protesters and legal observers.

The severity of the charges indicates that authorities are treating proximity to violent protests as a crime. What we may never know is whether police were specifically targeting these reporters for engaging in First Amendment-protected acts of journalism.

Keller told the Guardian that police also confiscated his phone — which could be a violation of the Fourth Amendment as well.

I’ve spoken to several reporters who were there that day, including some who were let go and some who were arrested. All deny having participated in any violence.

The outlets that the arrested journalists work for are varied but share a common trait. With the exception of RT, they are all relatively small in size. Police initially detained other journalists with this group, including a reporter working for the local NBC affiliate and another for U.S. News & World Report, but released them at the scene.  

Footage that journalist and livestreamer Tim Pool captured at the scene (see below) shows Aimee Choo from the local NBC affiliate standing with her camera next to livestreamer Matthew Hopard as police pin them in. Both are actively documenting the situation as any good journalist would. Neither is breaking any laws, though only one was arrested.

By pressing charges against some reporters while releasing others, authorities have made a value judgment about what sort of journalism gets protected and what leads to severe legal penalties.

This raises several important concerns. Is it up to police to determine who’s engaging in an act of journalism? Why do police decide to arrest one person rather than another?

And what does that mean for the legions of so-called citizen journalists who have taken to the streets to document anti-Trump protests but who lack the credentials of more mainstream outlets like NBC?

Unequal treatment of journalists

It appears police have a bias against smaller independent reporters and freelancers, who may lack the backing and legal support of larger media outlets.

Free Press has documented this trend over the years, tracking the more than 100 reporters and citizen journalists who were harassed and detained while covering the Occupy Wall Street protests. While the lists of those arrested include some mainstream-media reporters, the bulk work for either smaller independents or are freelancers.

Journalists of every stripe — including those who engage in acts of journalism by documenting police action in service of the greater public interest — should not be interfered with at all.

In 1945, George Orwell wrote:

“The degree of freedom of the press existing in this country is often over-rated.

“Technically there is great freedom, but the fact that most of the press is owned by a few people operates in much the same way as State censorship. On the other hand, freedom of speech is real. On a platform … you can say almost anything, and, what is perhaps more significant, no one is frightened to utter his true opinions in pubs, on the tops of busses, and so forth.

“The point is that the relative freedom which we enjoy depends on public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country.

“If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them.”

Orwell was writing in response to the arrest of five radical pamphleteers who were charged and convicted of “obstruction” while selling their publications in London’s Hyde Park. According to Orwell, many sellers for more established publications engaged in the same public activity free of police harassment.

Orwellian parallels

The Hyde Park parallels to the Jan. 20 arrests in Washington are notable.

I spoke to Katy Glenn Bass, PEN America’s director of free expression policy and research. “The thing that worries me at this stage is that we’re 10 to 11 days out and we still haven’t seen all of these cases processed and dismissed,” she said.

“I’m also worried at the ratcheting up of charges by authorities,” she added, noting the severity of the felony counts against reporters and others. “The real danger is that this will deter peaceful protests across the board.”

U.S. journalists historically have not needed official credentials or licenses to do their work. As a country we rightly recognize that this is one trade that should welcome all comers, regardless of their professional pedigree.  

There’s a reason for that and it’s tied to the First Amendment: Government should not be in the position of deciding who is and who isn’t a journalist. Authorities can’t determine who’s allowed to engage in acts of journalism and who doesn’t have the right.

But the First Amendment isn’t enough.

People need to stand up for these reporters — especially now that they are under attack on so many fronts — and show their outrage by speaking out in support of journalists’ rights whenever these arrests occur.

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