A Monthly Column in News Photographer magazine

Deni Elliott and Paul Martin Lester (E-mail and home page), The Practical Ethics Center, University of Montana

A Journalist Is Anyone Who Gets the Pictures, But At What Price?

In April 2000, Linda Tracy, a 32 year old senior in The University of Montana's Journalism School, accepted the Andrew Sullivan Presht award for excellence in broadcast journalism and its $1000 scholarship. Eight months later, she found herself in a legal battle over whether she is a journalist, thanking SPJ for a $1000 contribution to her legal defense fund.

Tracy did not plan to become a poster child for the First Amendment based on her work one summer weekend. She was simply being a good reporter, noticing a story about to unfold. In the end, she provides an important warning to student journalists who think that they have the same protections as professional journalists working for bona fide news organizations.

The summer of 2000 was a hot one for Western Montana, literally and figuratively. The state experienced the most extensive wildfire season in 90 years; The Rainbow People had chosen a local pristine wilderness area for the 20,000 who would come to celebrate and pray for peace. And, hundreds of Hell's Angels gathered in Missoula, the most populous city in Western Montana, for their annual national reunion. The weekend nights of the Hell's Angels gathering, July 29 and 30, promised to be tense even before the bars closed and crowds took their partying to the streets. In anticipation of possible illegal revelry on the part of the Hell's Angels, Missoula City Police had asked for additional law enforcement presence from neighboring states. Utah, with thoughts of crowd control at the upcoming Olympics, responded enthusiastically. According a a December, 2000 report from the Mayor's Citizens Review Committee, "In all, 170 officers from more than two-dozen outside agencies came to assist Missoula police and sheriff's departments in their efforts."

The Hell's Angels seemed amused by the helicopters circling overhead and by the groups of police cars parked at every major intersection, as they strolled among Missoula's downtown bars.

Local residents were outraged. Never had Missoula experienced what law enforcement officers called "aggressive policing."

Local police were surprised by the citizens' negative reaction. According to the Citizen's Report, "No one in the Department anticipated the reaction of a significant number of Missoula residents who, for a variety of reasons were disturbed by what appeared to them as something uncomfortably close to a week of marital law."

The disapproving citizens became a hostile mob the night of July 29. As Hell's Angels rode back to their hotels and camping areas without incident, local residents milled in the streets and taunted the police.

Tracy was home in Missoula that weekend after a month-long internship that involved her investigating a story on the environmental impact of the Rainbow People's gathering. Her past work included PBS productions and video footage used by local news outlets and she has her own incorporated production company.

Tracy noticed a helicopter hovering over Front Street late Friday night. She grabbed her camera and ran to the scene to see what was happening. Tracy noticed that there were no other cameras present, aside from those carried by police. She began recording police confrontations with the crowd, using her Cannon Excell 1, mini-digital camera. Later that night, she offered her footage to both local television stations. In all, 18 people were cited or arrested that night, most for open container violations.

Saturday evening began with an 8 p.m. protest by approximately 70 citizens and ended at about 3 a.m. with riot-geared clad officers "wielding batons, then deploying pepper spray and making what appeared to many to be either indiscriminate arrests or arrests targeted at people who were verbally questioning the officers' authority or reasons for their orders," according to the Citizens' Report.

After the first night, Tracy realized that she might have video worthy of a documentary as well as feed for local news programs. She explained that she went back into town "Saturday afternoon and evening with the intent of creating something." Tracy's two hours of tape turned into a 20-minute documentary called, "Missoula, Montana." The results of her effort included controversial footage that showed a policy officer ripping a protest sign from the hands of a demonstrator. The officer had made the false claim that the protester had first hit him with the sign; Tracy's completed documentary provided the context to prove that the officer had not been provoked. In addition, documentary showed officers pepper spraying protesters who stood calmly with their arms extended, waiting to be arrested.

Portions of the videotape were included in the news coverage of local television stations; the video was made available at public outlets in town, and the video was reviewed by the ad hoc Mayor's Citizens Review Committee that analyzed the events of that weekend.

In October, the City of Missoula asked Tracy for "her complete, unedited videotapes in order to assist the Missoula Police Department and the city attorney's office in establishing legal cases against "known and unknown defendents." 1

Tracy said no.

KPAX, Missoula's CBS affiliate received a request for tape as well from the City. The station followed its usual policy of "requiring a subpoena and $150," according to News Director Greg Schieferstein, and then produced a copy of what was aired. KPAX does not release outtakes to anyone. Montana's shield law makes it clear that KPAX outtakes are protected.

KPAX received no further request but the City repeated their demand to Tracy. Missoula City Deputy Attorney, Gary Henricks, said, that the difference is clear. Tracy is not a journalist. "Basically, if you are employed as a journalist, then you are a journalist."

The City also claims that Tracy was not "objective" because they believe that she portrayed law enforcement officials in a negative light while omitting similar aggressive behavior by protesters.

Missoula's position is that Tracy is not a journalist and, even if she is, she's not a very good one. But, regardless of objectivity, years on the job or where one is employed, journalists have a need and, in 30 states, a legal right, to protect information gathered in their investigations. If freelance or student journalists can lose their privilege or if claims of bias can overwhelm the right to source protection, then state shield laws lose their ability to provide for unadulterated views of important events in process. Unfortunately, Montana's Media Confidentiality Act, like most state shield laws, does not state that student journalists count.

Yet, student journalists are certainly subject to the same "chilling effect" that shield laws strive to avoid. Tracy said, "It is important that people who go out and take pictures, that the pictures aren't used for law enforcement...I would be afraid to go out and shoot something like that if I thought it could be held against people. That would just stifle everything."

Tracy isn't the only journalism student to have the legitimacy of her work questioned. Other cases at The University of Minnesota and Contra Costa College have required students to argue their right to protect sources in a way that journalists employed by bona fide news organizations rarely are. While the University of Montana is strongly behind Tracy - in the words of Dean Jerry Brown, "She was, in every way, functioning as a journalist," -- student journalists cannot know, while covering an event, whether their school will be at their back or leave them hanging out to dry.

The ethical implication is that sources cannot know what kind of protections they can count on from student journalists. Tracy was covering a public event. She had no responsibility to ask for permission for her recording, but, student journalists who find themselves in the middle of controversial coverage, should keep in mind that they may not have the backing or resources necessary to provide full protection for a source. In an interview situation, student journalists have an ethical obligation to make sure that sources know what they can depend on in terms of protection.

As Tracy's case shows, student journalists should realize that they may be forced to make decisions not asked of their professional brethren. Certainly, they can expect to be intimidated.

Law enforcement acts unethically when the agencies go after the most vulnerable journalists on the scene. But, the fact that student journalists are being victimized provides a special moral responsibility that they not unintentionally victimize their sources.

It is important to note that while law enforcement may try to create a distinction between student and professional journalists, the profession itself does not. The Summer of 2000 riot coverage is not the first time that UM students have found themselves in the middle of a newsworthy event. For example, in April, 1996, when Ted Kaczynski was arrested in Lincoln, Montana, the quick thinking of a handful of University of Montana journalism students resulted in bragging rights to the cover shot for Newsweek and photos for other major news publications.

A journalist is someone who gets the shot or the story. It is that simple. But purity of definition may not unravel the legal complications of defending one's rights. Until law enforcement agencies stop trying to deputize the most vulnerable journalists or state shield laws explicitly bring student or freelance journalists under their protection, these targeted reporters should know that they are taking special risk to be professional. Sources should be reassured that outtakes will be protected regardless of the personal or legal expense. That is the price for being a professional journalist.

1/Missoula Independent, Behind the Shield, Will the Hell's Angels video case determine who is or isn't a journalist?, Nov. 9-16, 2000, p. 13.

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