Michael Dorf: How to Protect Reporters From Hate Crimes

This article first appeared on the Dorf on Law site.

My column yesterday discussed the First Amendment implications of the Montana special election.

By electing a man who had just body-slammed a reporter for asking a question, did Montana voters threaten freedom of the press?

I explained that while of course there are no direct First Amendment issues raised by the incident (because a candidate for office is not a government actor and the First Amendment only restricts the government), all of our constitutional rights ultimately depend on social acceptance, and the incident—in combination with others, especially those connected to President Trump—thus poses a long-term danger for a free press.

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Here I want to propose a relatively modest legal response to that danger: State and federal laws should be amended to provide for penalty enhancements when otherwise criminal conduct is directed at reporters on account of their attempts to ask questions or otherwise do their job.

Penalty enhancers for an illicit motive are a familiar tool in the criminal law. The federal sentencing guidelines provide for enhanced penalties when a perpetrator selects his victim based "in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry . . . ."

Many states have similar so-called "hate crime" laws. For example, Wisconsin has a law that provides for enhanced penalties in exactly the same circumstances as the federal guidelines. The SCOTUS unanimously upheld this law against a First Amendment challenge in the 1993 case of Wisconsin v. Mitchell.

Penalty enhancers are not limited to what we conventionally consider hate crimes. The same federal guidelines provision linked above provides for an enhancement for crimes against "vulnerable victims," regardless of motivation, so long as the perpetrator knew or should have known that the victim was vulnerable (because of age, disability, or some other factor).

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Criminal laws typically provide penalty enhancements for crimes that target police or other law enforcement personnel. Etc. Penalty enhancers operate on the principle that, in addition to the typical harm caused by a crime--death, injury, deprivation of property, etc.--in certain circumstances the crime also causes other types of harm or especially severe harm.

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Republican Greg Gianforte at a campaign event at Lambros Real Estate on May 24, 2017 in Missoula, Montana. Justin Sullivan/Getty

That principle applies—or at least can be applied—when a criminal act targets a journalist because of journalistic activities. In addition to the bodily and psychological harm done to a particular journalist who is victimized, the perpetrator intimidates other journalists, thus chilling the performance of a function that is vital to democracy.

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To frame a penalty enhancer for crimes that target journalists qua journalists, legislators would need to grapple with at least two practical complications.

First, there is the question of who counts as a journalist. Federal constitutional law, as articulated in cases like Branzburg v. Hayes, generally accords journalists no special protection. Thus, in Branzburg , the SCOTUS rejected the notion that journalists have a First Amendment privilege to shield their sources.

However, just about every state has chosen a different route--typically providing at least a qualified right of journalists to shield sources. State laws thus need to define who is entitled to the privilege, which calls for the drawing of some difficult lines, especially in the age of mobile phones and social media.

Is everyone who wants to capture video and post it on Facebook a journalist? If not, what about regular bloggers? Occasional bloggers? Etc. These are not easy questions but neither are they insuperable obstacles to providing special protection for journalists, as experience under the state shield laws illustrates.

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A second question concerns scope. We might agree that Greg Gianforte's assault on a Guardian reporter properly would fall within the core of a penalty enhancer for crimes directed at journalists, but we can imagine more sympathetic defendants.

Suppose that in the wake of a house fire in which a parent's child has perished, a reporter persists in questioning the parent about her feelings and she responds by shoving the reporter. Although the shove could be deemed a criminal assault, an enhanced penalty for attacking a journalist would seem excessive in such circumstances.

Accordingly, a properly drafted penalty enhancement would not apply where the public interest in the information sought is slight relative to the privacy interest of the person who responded to the journalist unlawfully.

There might be other nuances that would require tweaks in the wording of a penalty enhancer for attacks on journalists. My goal here is not to set out a model statute but simply to suggest an approach. Adoption of penalty enhancers for attacks on journalists would carry important symbolic meaning, even if such enhancements were actually added to criminal sentences in rare cases.

So how about it? If you are a state or federal legislator (or legislative aide) who cares about protecting press freedom, introduce a bill adding attacks on journalists to the criteria that warrant penalty enhancers.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.

Michael Dorf: How to Protect Reporters From Hate Crimes | Opinion