Analysis Reporting

North Dakota: Stop the War on Journalists

Anti-pipeline action in West Texas
Pete Hefflin* hoists the AIM flag at a Standing Rock solidarity protest opposing the Trans-Pecos Pipeline in Alpine, Texas, earlier this month. Image: Greg Harman

[An adapted version of this post has since been published at Indian Country Today.]

SEJ joins organizations condemning the intimidation of journalists at Standing Rock

It’s the First Amendment: one of the earliest signals of the newly formed United States promising the federal government would not steamroll the interests of individuals and individual states. It established that there would be no law “infringing on the freedom of the press.” Yet, this right is constantly being challenged in practice.

Take North Dakota and the indigenous struggle for recognition of the rights of the Sioux nation, for the rights to clean water, for the rights to a stable climate. In recent weeks, numerous journalists have been arrested and charged with crimes for seeking to fulfill their obligation to accurately reflect for the public at large what is happening in that struggle.

This week The Society of Environmental Journalists released a statement objecting to “attempts to criminalize news gathering” in the pipeline protests taking place in North Dakota and beyond.

SEJ is not alone in their outrage over how North Dakota officials have been jailing journalists attempting to report on actions of thousands intent on stopping the Dakota Access Pipeline and related projects.

Writes SEJ President Bobby Magill:

The Society of Environmental Journalists condemns efforts to criminalize news gathering and reporting by prosecuting Amy Goodman of Democracy Now! and other journalists covering protests against the Dakota Access Pipeline.

It is in the public’s best interest to understand all the issues surrounding the pipeline, including its construction, environmental effects and the public reaction. Whatever one’s view of the protests and the legal and regulatory issues surrounding them, they are legitimately news, and it is the job of journalists to cover these events.

North Dakota law enforcement officials seem to equate journalists covering protests with the protesters themselves. Journalists have no First Amendment right to trespass, to be sure, but they must have the freedom to report if the press is to be free, as the Constitution guarantees.

To arrest them because they’re reporting on the protests is a blatant act of intimidation. If left unchallenged, such actions will have a chilling effect on the ability of news organizations of all types to report on newsworthy events, and deprive the American public of its right to know about them.

Most published report on this unsettling trend have focused on prominent journalist Amy Goodman of Democracy Now! who followed the self-described water defenders onto pipeline construction grounds in early September when crews began to bulldoze believed-to-be native graves and other sacred sites.

Her account of private security agents subsequent sicking guard dogs on those protesting gripped the nation’s attention and propelled, for a moment, the struggle into the national consciousness.

While riot charges against Amy Goodman’s were dismissed on October 17, documentary filmmaker Deia Schlosberg is still facing a possible 45 years in prison on multiple felony conspiracy counts. She had been filming a Standing Rock solidarity action in Walhalla, North Dakota, where activists shut down multiple pipelines carrying tar sands from Alberta, Canada, into the U.S. when she was arrested.

Here’s the crew Schlosberg was covering. Newsworthy, you think?

Shut It Down
From the Shut It Down Facebook page: Tonight, 10 activists, support team members, and videographers are spending the night in jail across four states for shutting down the importation of tar sands oil into the United States this morning, and taking action to avert climate cataclysm. Please donate now:

And speaking about her arrest:

“When I was arrested, I was doing my job,” Schlosberg said in a statement released Tuesday. “I was reporting. I was documenting. Journalism needs to be passionately and ethically pursued and defended if we are to remain a free democratic country. Freedom of the press, guaranteed by the First Amendment, is absolutely critical to maintaining an informed citizenry, without which, democracy is impossible.”

Other journalism organizations have also condemned the heavy-handed police and judicial response to journalists covering the protests.

“This arrest warrant [for Goodman’s arrest] is a transparent attempt to intimidate reporters from covering protests of significant public interest,” said Carlos Lauría, senior program coordinator for the Americas at CPJ, in a prepared statement. “Authorities in North Dakota should stop embarrassing themselves, drop the charges against Amy Goodman, and ensure that all reporters are free to do their jobs.”

Delphine Halgand, Reporters Without Borders’s U.S. director said:

This is clearly an attempt on the part of the North Dakota authorities to intimidate reporters from covering this topic in the future.

The editorial board of the Illinois Journal- Courier got involved, writing in an September 14, 2016, editorial well in advance of most other condemnations by these professional organizations, “An arrest warrant. For a journalist covering a story. Outrageous.”

A petition decrying police and judicial behavior begun by a self-described 16-year-old has nearly cleared its goal of 55,000 signatures.

It calls on the U.S. Department of Justice to investigate.

It reads in part:

In North Dakota, journalists are being targeted and arrested for covering peaceful protests against a harmful pipeline. These arrests are a clear and blatant attempt to suppress the press from reporting on human rights violations committed by the state acting on behalf of oil and gas companies.

As Earth Guardians around the globe, we demand that North Dakota officials drop the charges against journalists and that President Obama ask the DOJ to investigate the unlawful arrests.

And the teams of citizen-journalists with Unicorn Riot, the most active of media teams on the ground, have so far seen four of their reporters arrested.

From Unicorn Riot:

Since April 1st, 2016, Unicorn Riot has been covering the Sacred Stone Spirit Camp, and the subsequent #NoDAPL movement, to stop construction of the Dakota Access Pipeline (DAPL) underneath both the Missouri and Mississippi Rivers.

Over three hundred tribes have come together to say no to the Dakota Access Pipeline. We’ve lived in a camp alongside these nations, sharing their culture and traditions and standing united in what some have called the largest gathering of Native people since 1898.

Over the last month, various law enforcement agencies, private mercenary organizations, and other DAPL assets, have expanded their aerial surveillance, “information” checkpoints, and use of heavily armed riot police backed by MRAP‘s and Bearcat armored vehicles. Amidst the militarized crackdown on demonstrations against the pipeline, hundreds of people have been arrested, including four Unicorn Riot journalists.

The first two arrests of Unicorn Riot journalists covering the #NoDAPL movement were in North Dakota during a direct action on September 13th. The other two arrests occurred in Iowa, on October 7th and October 12th, while covering the Mississippi Stand direct action campaign against DAPL. All four Unicorn Riot journalists have been charged with criminal trespass, while documenting various actions taken by water protectors to stop pipeline construction. Our journalists were also strip-searched during their arrests. …

These four arrests present a clear pattern of arrests and criminal charges against many independent media organizations covering resistance to the Dakota Access Pipeline. Tying journalists up in court by trespassing them from covering events, issuing warrants, bogging them down with criminal charges and paying fees, effectively guarantees the media has less resources to cover ongoing historical events.

There are press freedom issues in the law enforcement response to #NoDAPL protests that have far reaching consequences. Local authorities have repeatedly refused to even acknowledge journalists in their roles as press. The McLean County (ND) State’s Attorney Ladd Erickson claimed that Amy Goodman wasn’t a journalist, because…

“She’s a protester, basically. Everything she reported on was from the position of justifying the protest actions.” – ND State Atty Ladd Erickson

By attacking Goodman’s content in the media, Erickson rejects a basic principle of settled First Amendment law. As Justice Thurgood Marshall wrote for the Supreme Court in 1972’s Police Dept. of City of Chicago v. Mosley:

“…above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, (1971); Street v. New York, (1969); New York Times Co. v. Sullivan, (1964), and cases cited; NAACP v. Button, (1963); Wood v. Georgia; Terminiello v. Chicago; De Jonge v. Oregon, (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” – Supreme Court Justice Thurgood Marshall

Here’s the sort of documentation UR’s teams are capturing:

All four have been released since posting bonds ranging from $300 to $400 dollars.

Still wondering what it’s all about?

Consider this message from Standing Rock, recorded by filmmakers Heather Rae, Cody Lucich and Ben Dupris.

It’s important to note that today’s media takes many forms, including  independent journalists reporting for small, self-hosted websites. You may call them “bloggers,” but the movement and the responsibility of its membership is bigger than that the term implies.

A reminder from Ken Paulson, president of The First Amendment Center, on recent legal developments. A good check-in for the judges and police of North Dakota:

A website that castigates others as “evil doers” and “thugs” has exactly the same First Amendment protection as USA TODAY and the New York Times – and that’s a good thing.

In a landmark decision on Friday, a federal appellate court held for the first time that blogs enjoy the same First Amendment protection from libel suits as traditional news media.

Are you listening, North Dakota?


* Pete Hefflin’s actual name is Pedro Rabago Gutierrez, as his March 2017 arrest revealed.