A journalist’s lawsuit alleging that the NYPD’s regulation of the press violates the constitutional rights of a free press can go forward, a federal judge ruled on Monday. In rejecting the government’s motion to dismiss the suit, Judge J. Paul Oetken affirmed that the government cannot arbitrarily restrict journalists, and that the NYPD and the City of New York’s policies for revoking and suspending journalists’ press credentials may be be unconstitutional.
“Arbitrary restrictions on news-gatherers may run afoul of the First Amendment,” Judge Oetken wrote in rejecting the city’s motion to dismiss the case. The plaintiff, he said, “has carried his burden to allege a protected interest in his press credential.”
The lawsuit, brought by freelance photojournalist J.B. Nicholas, stems from an incident in October of 2015, when Nicholas was on assignment for the New York Daily News. A building under construction on 38th Street had partially collapsed, trapping two construction workers towards the rear of the building.
Nicholas (who – full disclosure – has written for the Voice) arrived on the scene with his press credentials. The dead body of one of the construction workers had already been retrieved. While Nicholas waited in a nearby store for the second worker to be retrieved, police rounded up other journalists and corralled them into a “press pen” down the block and out of sight of the action.
But while most of the official press was kept from covering the story, photographers from numerous government agencies and even ConEdison were operating freely inside the police cordon, Nicholas said. When the second construction worker was freed, the complaint states, Nicholas approached, and, without interfering with the emergency workers, photographed him being placed in the ambulance.
Nicholas says getting the shot, which he couldn’t have done from the police press-pen, was important, and not just because it’s his job. “Those photos tell an important story that New Yorkers need to see,” he told the Voice. “There’s a story about the deunionization of construction in New York. Most of these guys are immigrants, legal and not, working for probably $100 a day in cash, all to build multi-billion-dollar condos. And there’s a cost for that exploitation — there have been 31 construction workers killed on the job in the last two years. So if you lose that photo, the impact of that story, the cost that’s paid for all this, it gets lost. The picture might trigger some inquiry. Think of the picture of the Syrian kid on the beach.”
But the press officers for the NYPD weren’t happy with Nicholas getting the shot, which ultimately led the story in the Daily News. As a video Nicholas took during the episode shows, they immediately approached him, confiscated his press pass, and ejected him from the scene.
Nicholas said he wrote to the NYPD repeatedly to discuss the return of his press pass, but was rebuffed. Meanwhile, his career suffered. “To be a photojournalist in New York, you need to have a press pass,” he said. “Without it, you can’t cross police lines, which is the only way to get the shot, you can’t photograph in court.” Unable to perform the basic tasks of spot-news reporting, Nicholas saw his assignments dry up. In December of 2015 he filed his lawsuit against then-NYPD Commissioner Bill Bratton. The suit alleges that police violated Nicholas’s constitutional rights to freedom of the press, speech, assembly, and intra-state movement, as well as his rights to equal protection under the law and substantive due process.
As Nicholas’s amended complaint explores in depth, the history of NYPD interference with journalists efforts to do their job is considerable, ranging from freezing out disliked reporters to the violent arrests of credentialed press at protests of the 2004 Republican National Convention to numerous arrests and obstructions of journalists during Occupy Wall Street in 2011 and 2012 to the assault and false arrest of a New York Times photographer documenting stop-and-frisks in the Bronx.
Nicholas has his own stories. He was arrested in 2014 as he was attempting to photograph NFL Commissioner Roger Goodell. Only after multiple witnesses told prosecutors that in fact it was Goodell’s bodyguard, a former police detective, who had run into Nicholas with his truck, choked him, punched him, and thrown him to the ground were the assault charges against Nicholas dropped. The year before, Nicholas was acquitted in case based on his taking photographs of paramedics in the subway.
Nicholas is acting as his own lawyer in the suit. At a hearing before Judge Oetken last May, he got the court to dig into just how the NYPD decides who can and can’t report in the city. Regulations state that if the NYPD tries to revoke a journalist’s credentials, they’re entitled to a hearing to challenge the revocation. “What do the hearings look like?” the Judge asked the city’s lawyer, Mark Zuckerman. “Are the hearings ever done?”
“I don’t have the answer to your question,” Zuckerman conceded. “I can’t tell your Honor conclusively whether it was done or not.”
What about how the police department decides when it’s going to suspend or revoke a journalist’s credentials, the judge asked. “Is there a written standard?”
“I’m not aware of any written standard,” Zuckerman answered. “There’s nothing in the rules about a written standard for what’s necessary to take a summary suspension.”
Zuckerman conceded that Nicholas was still entitled to a hearing, and a week later, Nicholas got one, presided over by DCPI’s commanding officer, Edward Mullen, and Lt. Eugene Whyte. Nicholas’s card had been revoked at the direct order of Steven Davis, the Deputy Commissioner for Public Information, who was on the scene that day, so Mullen and Whyte were effectively being asked to rule on an action of their boss. According to Nicholas, he wasn’t allowed to see any evidence against him and Whyte bullied the witnesses he called in his defense. Nonetheless, at a status hearing for his lawsuit a month later, Nicholas learned that he’d be getting his press credentials back.
Even so, Nicholas is determined to forge ahead with his lawsuit. “I did this for my colleagues. I did this for my city,” he told the Voice. “There’s an ongoing pattern of the NYPD keeping journalists away from breaking news scenes for no good reason.”
Efforts to control the press aren’t unique to New York, Nicholas says. They happen everywhere, including the White House.
Norman Siegel, a lawyer who has worked on numerous First Amendment cases and helped shape the current NYPD press credential policies, says the case goes to the heart of questions of press freedom. “The standard by which the NYPD pulls someone’s press pass or denies them renewal cannot be subjective, it has to be objective,” Siegel said. “If it’s subjective it invites discrimination based on the viewpoint or even personality of the journalist. We saw last Friday how freedom of the press can be abused, when [White House Press Secretary Sean] Spicer decided not to let certain media outlets in. Freedom of press is a cornerstone of our system. It’s being undermined not only by the Trump administration, and sometimes by the NYPD.”
The NYPD did not respond to a request for comment.
The case now moves into the discovery phase. Nicholas is still acting as his own lawyer – “It’s an exercise in personal empowerment, I hope to inspire others,” he says – which means that soon he will be personally deposing witnesses, including the the DCPI officers who revoked his credentials and former Commissioner Bratton.
“I’ve got a lot of questions,” he said. “Are there any records of how they handle press credentials, suspensions, revocations? Who keeps notes on this. Where are those notes? Let’s see the logs. How many journalists have been arrested?”