Arrests Of Journalists At Standing Rock Test The Boundaries Of The First Amendment

Pat Boyle, a Denver-based journalist, was shot in the abdomen last Sunday by a rubber bullet as he reported from North Dakota on a clash between demonstrators and police that would end with 26 protesters sent to hospitals and 300 requiring other medical treatment. One woman was severely injured and underwent emergency surgery on her arm, after officers unleashed “less than lethal” weapons, including rubber bullets, icy cold water, and, reportedly, concussion grenades on the crowd. Police were reacting to an attempt by Dakota Access pipeline opponents to tow away burned vehicles that officers had secured in place to act as a highway blockade, preventing access to pipeline construction sites down the road. The rubber bullet that hit Boyle tore right through his press pass, leaving a jagged hole through the words “Unicorn Riot,” his news organization’s name.

This wasn’t Unicorn Riot’s first run-in with police while covering the pipeline conflict, nor was it the media collective’s most serious. Reporters for Unicorn Riot have been arrested three times in North Dakota and twice while covering Dakota Access pipeline protests in Iowa. In North Dakota at least seven journalists in total have been arrested while covering the clashes, according to a count by the Bismarck Tribune. Others have been stung by tear gas, pepper spray, or rubber bullets.

The arrests of journalists and filmmakers covering the front lines of the Dakota Access pipeline fight highlight the limits of press protections and the central role of police, prosecutor, and court discretion in deciding whether or not members of the press should face legal consequences when covering protests. The arrests and violent crowd suppression tactics also reflect the refusal of police to discriminate between peaceful protesters, aggressive agitators, and journalists.

Unicorn Riot was one of the few media outlets that showed up on April 1, when members of the Standing Rock Sioux tribe arrived on horseback to set up a camp called Sacred Stone as a base for prayer and protest against the planned Dakota Access Pipeline, which if completed will transport half a million barrels of oil per day from the Bakken shale region of North Dakota to a hub in Illinois. And the media collective has remained a presence as the standoff reaches into the winter months with few signs of abating.

On Friday, the Army Corps of Engineers issued the Standing Rock Sioux tribe an eviction notice, demanding that thousands of people clear out of a second camp, known as Oceti Sakowin, located on land the Corps controls. “This decision is necessary to protect the general public from the violent confrontations between protesters and law enforcement officials that have occurred in this area, and to prevent death, illness, or serious injury to inhabitants of encampments due to the harsh North Dakota winter conditions.” The letter directed inhabitants to a site further away from the pipeline construction area, dubbed a “free speech zone.”

“They’re giving us notice because the Corps of Engineers wants to reduce their liability when something serious happens,” said Standing Rock tribal chairman Dave Archambault during a press conference Saturday. “If [the Morton County Sheriff’s Department] wanted to, they would be able to come in and remove us. I don’t think that will happen.”

Nick Tilsen, co-founder of the Indigenous Peoples Power Project, which trains native people in direct action tactics, added, “Indigenous people are here to stay. And we’re not going to move unless it’s on our own terms, because this is our treaty land, this is our ancestral land, this is where our people have been for thousands of years.”

If nothing else, the eviction notice is likely to amplify tensions between pipeline opponents and police. The dynamic will play out on the front lines of protest actions, a space Unicorn Riot specializes in covering. It’s a space that can be legally precarious for journalists, where citizens with grievances meet publicly funded police straining (or failing) to balance law and order with constitutional speech rights. These situations often test the limits of the First Amendment, so video dispatches from the front lines provide distinct information about public life and the use of force to control a dissenting citizenry.

For example, video published by Unicorn Riot and others of tear gas canisters and water cannons sprayed directly into crowds of protesters last Sunday night, when temperatures stood well below freezing, countered police claims that the water was being used primarily to protect people from fire.

By comparison, footage published by the local Morton County Sheriff’s Department of a projectile landing on the far side of the police line, came off as tame.

Unicorn Riot’s coverage is sympathetic to the pipeline opponents and is rarely favorable to the police, and its members are often mistaken for activists. They can be counted on to provide live-streams of pipeline protests that are later edited into more easily digestible short pieces. More immersive than mainstream media and more polished than the work of most activist documentarians, the collective’s coverage has been essential to understanding the events in North Dakota.

Yet police have repeatedly questioned the press status of Unicorn Riot reporters, and during mass arrests they and other journalists have often been swooped up with protesters. “I’m not participating. I’m not building the barricade. I’m not pushing off against the police. I’m not going to pray at the water ceremony. I’m literally there observing,” said Lorenzo Serna, another Unicorn Riot reporter.

“If you come from too radical perspective your right to report is somehow in question, because you’re outside the ideological frameworks,” said Chris Schiano, who has also been arrested covering the protests. “Most news organizations assume that nation states are legitimate and should exist. We try to report things outside of some of the central assumptions.”

The first time members of Unicorn Riot were detained in North Dakota was on September 13, during one of the earliest mass arrests. Pipeline protesters had locked themselves to construction equipment, and 26-year-old Chris Schiano came with Niko Georgiades, 34, to film it. By the end of the day 23 people were arrested, including the two reporters.

As police moved in, Unicorn Riot’s Facebook live-feed was cut off. Facebook told Motherboard it was because of a mistake by an automatic spam filter. In a video of their arrests, Schiano can be seen standing apart from a throng of police clad in riot gear as he points to his press ID before he’s cuffed. Georgiades, filming the arrest, was detained shortly afterward and can be heard declaring, “I’m press, sir. I’m press.”

Georgiades’s press status didn’t count for much: The First Amendment does not protect journalists from trespassing charges. Ultimately, whether or not to arrest a journalist covering a protest on private property is up to the cops, and that day the two men were treated as protesters.

A month later, another Unicorn Riot reporter, 30-year-old Jenn Schreiter, was arrested and charged with trespassing while covering a lockdown at a Dakota Access construction site in Iowa.

Chief Deputy Scott Bonar of the Lee County Sheriff’s Office said deputies don’t distinguish between protesters and journalists when it comes to trespassing. “They were told by security and deputies to leave the property. They could have walked to the roadway and did reporting there. They stayed on property and were arrested.”

In response, Schreiter said, “It’s part of the organization I work for, a non-profit, educational media organization, to report from the front lines. The equipment I had was my cell phone. In order to capture audio and video, I needed to be where the action was.”

When Schreiter’s colleagues went to inquire about the reporter’s whereabouts, a deputy replied, “You don’t have a journalist. You claim you’re press; you don’t even have credentials.”

His words echoed those of Ladd Erickson, the McLean County State Attorney in North Dakota who charged Democracy Now! host Amy Goodman with trespassing on September 3. Goodman and a film crew had followed a group of people opposing the pipeline onto private land, where they were met with pepper spray and biting dogs.

“She’s a protester, basically. Everything she reported on was from the position of justifying the protest actions,” Erickson told the Bismarck Tribune, arguing that her reporting hadn’t noted alleged injuries to private security guards. “Is everybody that’s putting out a YouTube video from down there a journalist down there, too?” The charges against Goodman were eventually changed to rioting, then dropped entirely.

“In the old days you could count on them dismissing those charges,”said Lucy Dalglish, dean of the University of Maryland’s journalism school. “But increasingly public officials are not cutting journalists much slack.”

Dalglish blames the shift on “a lot more people having cameras and saying I’m not a journalist, I’m a documentarian. I’m going to document police brutality. This kind of puts cops on edge. They’re thinking, ‘You’re going to think the worst of me? Well guess what, buddy, I’m going to get you, too.’ Plus, you cannot dismiss the tension that is out there in situations like Dallas, where there is a demonstration and cops end up being assassinated.”

Dalglish agreed that political objectivity is not a prerequisite for calling a product journalism. “This country was founded by a bunch of folks who were crusading journalists. There’s nothing that says you can’t do that,” she said. However, she added, “If [police] see you being really friendly with some folks that they have their eyes on, it probably does put you at risk.”

Unicorn Riot came together as a project in 2014. Some of the founding members met while filming direct actions in support of movements like Occupy Wall Street and Tar Sands Blockade. The idea for a collective grew out of a desire to control the production and publication of their work but also out of an interest in watching out for one another when undertaking legally risky reporting. They are volunteer-run, and their meager budget comes from viewer donations.

The project drew early attention for its coverage in 2015 of protests in Minneapolis after Jamar Clark was shot and killed by local police. While covering the shut-down of Interstate 94, Georgiades was arrested along with 33 others. Unlawful assembly and traffic charges were eventually dropped.

“There’s been a lot of times where one of these guys will get arrested and our team is remotely getting us out of jail,” said 33-year-old Andrew Neef, another reporter for the collective. “We keep track of each other and make sure that we’re watching out for each other.”

Unicorn Riot reporters carry cards identifying them as members of the press, but the bullet hole in the card Boyle carried is a pretty good metaphor for how police view the IDs. And a document recently uncovered by the collective via a public records request provides insight into law enforcement’s approach to interpreting press badges. It’s a Federal Emergency Management Agency (FEMA) manual that was recently emailed to the director of training for the North Dakota Department of Corrections and Rehabilitation, declaring, “Some protesters will attempt to design fictitious media credentials to gain access to events or special consideration by law enforcement.”

At the Oceti Sakowin camp in North Dakota, which serves as a base for opposing the pipeline, volunteers distribute press IDs that give journalists permission to take photos on camp premises, after they attend an orientation. When I was at the camp recently, pass distributors suggested putting the passes away during protest actions, saying that pass carriers seemed to become police targets.

Others believe it’s less about targeting and more about police who decline to discriminate between journalists and activists. “I think that as the boundaries between journalists and non-journalists continue to erode, and any definition of journalism becomes more elusive, journalists have to realize that their rights are not protected by the special realm of press freedom,” said Carlos Lauría, the Committee to Protect Journalists’ program director for the Americas. Instead, he said, reporters should seek protection by “guaranteeing that the rights of free expression are extended to all.”

As of November 14, according to the Morton County Sheriff’s Department, 473 people had been arrested attempting to stand in the oil pipeline’s way. Freelance reporters, documentary filmmakers, producers of movement-building media, and independent activists armed with a cell phone have all been swept up in mass arrests that have been carried out almost weekly since October.

Sara Lafleur-Vetter, a filmmaker who has been covering the pipeline fight since August, was charged on October 22 with trespassing and engaging in a riot in one of the largest mass arrests, when 127 were detained. Her camera was confiscated and eventually returned without its memory cards, and she said her bail agreement stipulated that she should not have any direct or indirect contact with Dakota Access pipeline property. “I can still go out,” she said. “I just have to be really careful.”

Serna was arrested that day, too, and issued the same charges as Lafleur-Vetter. It was more than a week before his camera was returned.

“By the time we go to court we’ll have a new president,” Lafleur-Vetter said. “It’s scarier now. The risks are bigger now.”

Human Rights observers have also been prevented from monitoring protests. Twenty-five people were arrested on November 15 for protesting at a Dakota Access equipment site against the disappearances and murders of indigenous women. Demonstrators blocked a road used to access the equipment yard, and police in turn blocked off a public thoroughfare adjacent to the site, preventing journalists and human rights observers from monitoring the events.

In response, Amnesty International director Margaret Huang wrote a letter to Morton County Sheriff Kyle Kirchmeier. “Our observers are wearing yellow shirts clearly identifying them as human rights observers and carry with them authorization letters from Amnesty International USA explaining their role in the observation of protests taking place in North Dakota,” she wrote. “Providing access to legal and human rights observers and journalists is a necessary component of policing protests to ensure that police facilitate the right to protest and that the rights to peaceful assembly and association are protected as required under international law and standards.”

The Morton County Sheriff’s Department did not respond to requests for comment.

Amnesty has visited Dakota Access protests during two other visits. “It’s worrisome and troubling when you have law enforcement really overzealously engaging in mass arrests that are actually geared at shutting down a protest,” said spokesperson Eric Ferrero, “If the whole mindset is that protesters are the enemy, and they’re on some kind of a battlefield, those are not police that are being set up to facilitate peaceful protest.”

“Ultimately our concern is that these interactions chill people’s human rights to free speech,” he said.

Unicorn Riot reporter Neef predicted Donald Trump’s election victory will increase the frequency of protests the collective covers. It has certainly diminished the chances that an executive branch order will halt the pipeline, but he was less sure that Trump would significantly alter the dynamics of the front line. “We might go through more tear gas filters for our gas masks, but it’s pretty much the same stuff that we’re dealing with,” he said.

“There’s a militarized fortress around the drill pad, enforced by mercenaries with automatic weapons, supported by the Morton County Sheriff’s Department,” said Serna. “Where does it go from here?”

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