Protest & Pushback
The murder of George Floyd by a Minneapolis police officer spurred a movement that touched nearly all aspects of American life. Fueled by rights afforded by the First Amendment, the country experienced an historic uprising not seen since the Civil Rights era of the 1960s. The reignited movement for Black lives led to concrete changes in policies and politics. And, it changed the conversation about racial justice, and possibly the country, forever.
A new generation of activists exercised their right to peaceably assemble, to speak out and to petition the government. The right to record police gained new importance. Videos of troubling — and sometimes fatal — encounters with Black people fueled demands to end systemic racism in policing. And the press documented the movement, putting new focus on the problem.
But, like previous social justice movements before it, Black Lives Matter also spurred backlash, exposing how fragile these rights can seem to those exercising them. Police clashed with protesters and detained, arrested and injured journalists in unprecedented numbers. Across the country, a new wave of anti-protest measures were debated in state legislatures.
We spoke to journalists and advocates about their own experiences watching an historic moment unfold to understand the role of the First Amendment in social justice movements. Through their lenses, we look at the growing distance between what these rights afford in theory versus reality, especially for people of color.
Protest & Pushback explores what the movement for Black lives shows us about the power and peril of exercising our First Amendment rights.
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“I think the first time I generally felt like my First Amendment rights were being attacked was last summer when I was shot by LAPD,” said Cerise Castle. “I've been in tricky situations before as a member of the press, and it's never escalated to that point. That afternoon was the first time I felt like wow, like, this is really what it must feel like to be in a country where we don't have First Amendment privileges, and we don't have a free press.”
Castle is a Los Angeles journalist who was struck by a police officer’s rubber bullet while covering protests just days after George Floyd was murdered in May 2020.
Officers got out of their vehicle where a crowd had gathered, and without warning, pointed rifles into the crowd. People started running. Castle held her ground. She kept taking photos, yelling, “Press!” and holding her press lanyard above her head. She said she locked eyes with an officer and then felt the sting of a rubber bullet striking her arm.
“I've been detained at press conferences since then,” Castle said. “I've received death threats since then. None of that ever really happened to me before.”
Castle is one of an unprecedented number of journalists across the country who faced assault or arrest while covering protests, according to data published by the U.S. Press Freedom Tracker. In 2020, there were more than 420 physical assaults against journalists reported, a 900% increase from the previous year. Most assaults were at the hands of law enforcement.
But risk of injury and arrest weren't the only threats to press freedom. Journalists also saw authorities try to discredit their work, labeling them as activists or illegitimate.
“KPCC was the same organization that did the fake Sassafras Saloon story. It's the same organization that tried to sell that again and again. This is where we're crossing the line between journalism and activism."
That’s how Los Angeles County Sheriff Alex Villanueva responded to questions about why his deputies arrested KPCC reporter Josie Huang in September 2020.
Huang covered a press conference outside a hospital where two sheriff’s deputies were being treated for gunshot wounds. They had been ambushed in their patrol car earlier in the day. Tensions were high as law enforcement was reeling from the attack. Two weeks earlier, sheriff’s deputies shot and killed Dijon Kizee, a Black bicyclist, in South L.A. The shooting ignited a series of new protests.
After Huang covered the evening’s press conference about the shooting, she heard a commotion on the street outside the hospital.
Huang documented what happened on Twitter, making an undeniable record of the ordeal.
“I walked behind, using the zoom on my camera so I could keep physical distance. I saw a commotion ahead of me. Deputies rushed one man and chased another.
“I was filming an arrest when suddenly deputies shout, ’Back up!’ Within seconds, I was getting shoved around. There was nowhere to back up.”
A nearby TV cameraman captured Huang being thrown to the ground, with several deputies pinning her down. Throughout the altercation, Huang can be heard yelling, ’I’m a journalist!” Her newsroom ID was clearly visible around her neck.
“Somehow I was able to start a new video right away. You see my phone clatter to the ground, and I start shouting, ’I’m a reporter. I’m with KPCC!’ I scream for help from the TV reporters I know are around the corner doing their 11 p.m. live hits.
“After my phone drops, it keeps recording and it captures two deputies damaging my phone by kicking and stepping on it.
“I can hear myself in the background shouting: ’You guys are hurting me!’ and ’Stop it!’”
“It feels very out-of-body to play this back,” Huang said.
Thank you https://t.co/5ajOiRV1m6 for what is the clearest footage of my arrest by @LASDHQ.— Josie Huang (@josie_huang) September 14, 2020
It’s how I remember it — like being tossed around in the ocean and then slammed into rock pic.twitter.com/G3rfCR1NiI
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As the Black Lives Matter movement became a political force and a global movement, it also became a target. A wave of anti-protest bills were introduced in state Legislatures, a form of backlash that could have a chilling effect on First Amendment rights, civil rights lawyers warn. It's reminiscent, they say, of the pushback seen amid past racial justice movements.
“We saw a public nuisance and other very low level misdemeanor statutes get introduced in the civil rights era that were used, and a targeted effort to criminalize Black civil rights leaders, and criminalize their speech and their activities,” said Nora Benavidez, senior counsel and director of digital justice and civil rights for the advocacy organization Free Press. “We're seeing those tactics used again now.”
At the height of the protests that followed George Floyd’s killing, Benavidez was director of free expression programs in the U.S. for PEN America. In that role, she and her colleagues documented this explosion in anti-protest bills.
“There's this long history of criminalizing certain actors,” Benavidez said. “In the years now that have followed both the Black Lives Matter movement and protests against the Dakota Pipeline Project, we saw this huge rise in anti-protest bills from 2017 through now. The George Floyd protests, which I think we need to contextualize as the longest, largest sustained movement we've seen in history now, across the whole world — it's the longest period of people coming out day after day after day, protesting.”
“After that movement really kind of swelled in the summer of 2020,” continued Benavidez, “we saw legislators take incredibly horrible legislative action to introduce even worse anti-protest bills that so clearly were to target the kind of activity that those protesters were engaging in.”
From June 2020 through March 2021, state policymakers introduced at least 100 anti-protest measures in 33 states.
“Black and Brown communities are so much more at risk of being targeted and violently attacked. So if you're a journalist of color, I think the risk goes up, if you are a protester of color, the risk goes up.” — Nora Benavidez
Senior counsel and digital justice and civil rights director for Free Press
“If BLM or the George Floyd protests were on a highway in a given city, you would often very quickly see state legislators where that city is located introduce a bill to increase penalties for highway obstruction,” Benavidez said.
“And the penalties would often become so steep, where you're like sitting there thinking, you know, a crime already exists for this. There's already a sanction. Why would we need something steeper? And so the natural conclusion, I think, is that it's meant to stifle speech,” Benavidez said, “and it's particularly meant to silence and scare activists that would be speaking out for racial justice and other progressive causes.”
While this kind of resistance to social justice movements is nothing new, the damage it can cause to free expression should not be underestimated. Margaret M. Russell, a constitutional law professor at Santa Clara University, says that efforts to depict Black Lives Matter as violent in an effort to justify more aggressive policing and harsher penalties could have broad implications.
“I think the backlash that we’re seeing is reason to be alarmed,” she said. “I think the problem with the backlash against Black Lives Matter is that it focuses on criminal actions — damage to property, vandalism, etc. — that has been revealed to be largely not by BLM protesters.”
She added: “You can actually look at recordings of people going into stores and carrying things out or writing on walls. And you will see that a number of people are not associated with BLM at all, yet that broad swath of criminalization has been applied to Black Lives Matter.”
Republicans, supporters of Donald Trump and the former president himself described Black Lives Matter protesters as “rioters” and “looters” and "tearing cities apart.” However, data by various researchers found Black Lives Matter protests were more peaceful than the mostly nonviolent protests of the 1960s.
“I am a nonviolent adherent, so to me, violent protest is illegal protest,” Russell said. “But BLM is a movement...[that is] larger than protests in the history of this country. There are many peaceful expressions — loud, angry, but peaceful. It’s important to separate that out and not let the backlash create the narrative that this is inherently a violent movement or primarily a violent movement.”
Adding race and power to the mix makes things even more complicated. Who really has the freedom to speak freely and cover the police critically and march in the streets?
Benavidez, the lawyer with Free Press, said her fears are playing out in early court cases stemming from the legislative backlash.
“I've been studying these anti-protest laws as they move from only being proposals to becoming law,” she said. “Many of them are not outright facially unconstitutional. Some of them do appear to be facially unconstitutional.”
But once one of these becomes law, she said, the question is, how will something be used?
“How will the law be selectively used by law enforcement?,” Benavidez asked. “We've actually seen one district court really sound the alarm on the effect that these laws have. A particularly egregious anti-protest law was introduced and passed in Florida.”
The Combating Public Disorder Act was introduced by Republican lawmakers in Florida and swiftly signed by Gov. Ron DeSantis. It redefined rioting in a way that meant a person could be arrested for simply being present at a protest where violence or property damage occurs.
“I found myself just as intimidated and scared of police at times, especially during my coverage.” — Mariah Stewart
Black St. Louis-based journalist who covered 2014 Ferguson, Missouri protests following police killing of Black teen Michael Brown
A coalition of Black-led organizations quickly challenged it in court. And in September 2021, a federal judge temporarily blocked the law, saying it “encourages arbitrary and discriminatory enforcement.” In other words, it may well violate the First Amendment.
“The plaintiffs there submitted affidavits talking about the ways that this was a law that they knew would be targeted and used to target Black activists, Black movements and progressive movements,” Benavidez said. “And I think that the larger speculation I've always had and felt intuitively it's an obvious conclusion is that yes, dissenting minority opinions are going to be stifled more.”
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Feeling targeted is how photographer Kian Kelley-Chung describes his experience at a protest in Washington, D.C.
Kelley-Chung was finishing his senior year at University of Maryland while running his own production company, when he and his film partner, Andrew Jasiura, covered a large protest in Northwest D.C. on Aug. 13, 2020. Both were wearing shirts with their company logo and carried camera gear and cell phones.
“I got pushed by an officer into what I then found out was a kettle,” Kelley-Chung said. “And there were about 40 other people that were trapped in the kettle, me and my co-director included.”
Seeing an officer push a protester to the ground, Kelley-Chung ran over to record the altercation. More protesters quickly gathered around the scene as police surrounded them. This is a crowd control technique called kettling. Kelly-Chung and his partner were caught in the middle.
“At one point, one of the officers, he was walking by the crowd, and he said he was holding a bunch of zip ties in his hand,” Kelley-Chung said. “And I remember hearing him say, ‘Well, I have to arrest somebody.’ And he turned to the crowd and looked directly at me.”
Kelley-Chung reflexively grabbed his camera and started filming. He immediately identified himself as a journalist. But he said he was the one grabbed out of the crowd.
“What am I out here doing ‘rioting’. I’m a documentarian. I’m a photo journalist. I’m a member of the media. And they violated my 1st Ammend. rights. And that’s why we’re out here. That’s why they had to let me go”— ChuckModi (@ChuckModi1) August 14, 2020
My media colleague Kian @uncleiso after release at #DCProtests pic.twitter.com/vBKIfJivY0
“And the very first thing I said, as soon as he grabbed me was, ‘They're arresting journalists, they're arresting a journalist,’” Kelley-Chun said. “And they didn't care. They did not care at all. I told them several times that I was out there literally just practicing my First Amendment rights I have the right to do what I was doing.”
He was among dozens arrested. He filed a federal civil rights lawsuit, alleging violations of his First Amendment and other rights. The case was settled for what his attorneys called a “substantial” amount.
“They had also pulled Andrew out of the crowd as well,” Kelley-Chung said. “But they didn't arrest him. They arrested me, but they didn't arrest him.”
He said they were the only two people within the kettle with camera equipment and were wearing matching shirts that had their company logo — a big branded logo across our chest — trying to establish that they were a team.
“I'm Black. He's white,” Kelley-Chung said. “They let him go. But they sent me to jail. I will never forget that.”
This risk of unequal treatment of people of color, whether they’re journalists, protesters or activists, is a grim reality that Benavidez says she takes into account in her work.
“Knowing your rights will not prevent them from being violated, which is a very somber comment,” Benavidez said. “I am a lawyer that will defend so aggressively and advocate for equitable rights. But Black and Brown communities are so much more at risk of being targeted and violently attacked.
“So if you're a journalist of color, I think the risk goes up. If you are a protester of color, the risk goes up. And these are the ways where we have to really just be very clear-eyed about what we're facing.”
Mariah Stewart, a St. Louis-based journalist, knows this feeling of risk first-hand. Stewart started her journalism career following the police killing of Michael Brown, an unarmed Black teen shot dead by a white police officer in Ferguson, Missouri. She moved to a nearby town just before the city of Ferguson erupted into protests in 2014.
“Definitely during the thick of unrest in Ferguson, your press badge did not matter whatsoever,” Stewart said. “When covering [protests], oftentimes, I would write my colleagues phone number down just in case I was arrested. It definitely just felt unsafe.”
She added: “My Blackness did not help me. covering that and with relations to police officers. But I also know that that was just kind of the setup for journalists in general.”
When asked what her relationship with law enforcement is like as a Black woman, Stewart paused.
“Nerve-wracking,” she said.
“It's complicated,” Stewart went on. “I found myself just as intimidated and scared of police at times, especially during my coverage. And also when I get pulled over. As we've heard so many times before, from other Americans of color. There have been times when I've talked to police chiefs and the conversations went well and it was respectable and there's other times where you see a police officer hitting someone in the middle of the chest with a billy club and all you can think is, ‘This is not right.’ So, it's complicated. But you have to hold them accountable.”
Kelley-Chung describes the discrediting of independent journalists as problematic, too.
“Because you didn't get published in the Washington Post, just because you didn't get published on CNN or whatever it is, doesn't mean that you're not actively documenting what's happening,” he said. “Just because all the people that are there are people who are live-tweeting, live-streaming, stuff like that, and might not have a CNN credential around their neck, that doesn't mean that what they're doing isn't valid, that doesn't mean that what they're doing isn't truthful or honest. It just means that they don't have a mega corporation backing them.”
The day Castle, the L.A.-based journalist, gave her interview for this project, she was criticized by the L.A. sheriff. He said her work, which has been published by NPR, VICE News, the Daily Beast and the L.A. Times, “wasn’t legitimate.” For community journalism nonprofit Knock LA, Castle published a 15-part series describing a history of violence in the Los Angeles Sheriff’s Department. The project includes a searchable database of what she labeled gang-affiliated LASD employees.
MORE FROM PROTEST & PUSHBACK:
Q&A with human rights lawyer James Tager on what alarms him most about the legislative backlash to recent protest movements
Q&A with Constitutional Law Scholar Margaret Russell
“Everything that I reported is completely legitimate,” Castle said. “I think it's incredibly problematic that we have agencies that are the subject of press coverage deciding who isn't legitimate. That's like fascism. I'm pretty sure that's not what this country is, as far as I'm concerned, and as far as I think the Constitution is concerned.”
Documentation is powerful. Arresting journalists, calling them activists or illegitimate distracts from the truth they’re trying to document in the first place.
“I think that it's a tool of diversion,” Kelley-Chung said. “And it's a tool of suppression, and a tool of censorship.”
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Everyone we spoke to who shared what it was like to exercise their First Amendment rights to document a movement — and the risks they took and backlash they faced as a result. Given their experiences, we asked each of them to describe what those core rights under the First Amendment mean to them.
Stewart: “It means transparency. It means holding our government accountable.”
Kelley-Chung: “I understand it as being the very first priority of the nation. When they wrote the Constitution and the Bill of Rights, this was the very first thing that they decided that they wanted to ensure that all American people have the rights to do. It gives you the right to say that the government is fucking up, and you have the ability to do something about it.”
Castle: “It's my bread and butter. The First Amendment is what I stand on to do all of my work. It drives everything I do.”
Benavidez: “If we're not defending the First Amendment, we're not doing very much because all of our other rights flow out of it. I also don't think we've really arrived at a place as a society where we feel speech is something that we have to protect in principle. You have to believe that the speech you can create and put out there into the world is the stuff that you want to envision for us. And that's what's so beautiful about the First Amendment.”
Protest & Pushback is a joint collaboration between the First Amendment Coalition and Code Black Media. Ginny LaRoe of the First Amendment Coalition directed the project. For Code Black Media, Giuliana Mayo narrated and produced. Dana Amihere narrated and developed the online presentation.
Additional thanks to Brian Skipworth for production assistance and sound design and to First Amendment Coalition intern Cricket X. Bidleman for her contributions.