Kenton County prosecutors have finally dropped charges against Cincinnati journalist Madeline Fening, who was arrested while covering a July protest on the Roebling Bridge.
But the damage is already done. The county prosecuted two journalists for doing their jobs, drew condemnation from civil liberties advocates across the country, sacrificed any credibility it had when it comes to valuing transparency and respecting First Amendment rights — and all to recover a grand total of $50.
That’s what the county got after convicting Lucas Griffith, a student journalist who interned at CityBeat and was arrested with Fening, on a single misdemeanor charge of failure to disperse. Jurors at the October trial rejected more serious misdemeanor charges. The county previously withdrew ridiculous felony rioting charges against both Griffith and Fening.
The facts of these cases were never in dispute. Fening and Griffith were working journalists covering a demonstration opposing the immigration detention of Imam Ayman Soliman. An ironic twist: that Soliman himself is a former journalist who fled persecution in Egypt.
When Covington police ordered protesters to disperse from the bridge, officers arrested both journalists along with the demonstrators, even though Fening and Griffith were there to document the event, not participate in it, and even though the Department of Justice and a federal appellate court have made clear that journalists lawfully reporting on protests can’t be dispersed. Otherwise, police could brutalize protesters outside the view of the press.
Griffith was fined $50 plus court costs. Fening’s charges have now been dismissed. What a pyrrhic victory and spectacular waste of taxpayer resources.
The county reportedly dismissed the case against Fening only after she agreed to acknowledge probable cause for her arrest, which officials reportedly believe is effectively a waiver of the right to file a civil lawsuit. They offered the same deal to Griffith, but he declined. It’s entirely understandable why Fening would make that concession in order to finally get rid of the weight that a pending criminal case places on her shoulders. But prosecutors should know better than to demand it in the first place.
Some state attorney commissions have held it unethical for government attorneys to offer such a deal. The Kentucky Supreme Court doesn’t appear to have considered that precise question, but has held that plea bargains can’t ethically include waivers of ineffective assistance of counsel claims, for example. It’s also arguably improper for the government to condition a benefit (dropping charges) on forfeiture of a constitutional right (a journalist’s right to sue for First Amendment retaliation), particularly when, rather than merely waiving claims, prosecutors compel a defendant to make a specific admission against their will.
But more importantly, why would prosecutors demand such a concession if they had a clear conscience? They may say they want to save taxpayers the expense of defending a civil suit. Nonsense. If they were worried about saving taxpayer money, they wouldn’t have pursued these silly cases in the first place.
It’s much more likely they wanted to avoid civil litigation because they knew they’re in the wrong. And there’s proof. Video of Fening’s arrest shows her standing back from both protesters and police while filming the scene. When officers grabbed her, another journalist can be heard repeatedly telling police that she’s a member of the press.
None of this is news to Kenton County prosecutors. In September, the organization where I work, Freedom of the Press Foundation (FPF), led a letter from over 20 press freedom organizations, plus journalism professors from the University of Cincinnati (where Griffith is a student) explaining in detail why the prosecutions violated the First Amendment.
The letter cited the aforementioned DOJ guidance and federal case law, as well as examples from jurisdictions across the country that had wisely dismissed similar charges against journalists. Those prosecutors recognized not only the constitutional problems with such charges but that using the law to harass journalists is bad policy and an ill-advised use of prosecutorial discretion.
When authorities prosecute journalists for covering protests, they send a chilling message to the press: Stay away, or face arrest. They deprive the public of information they need to decide whether their government is acting in their interests and undermine the transparency that builds trust between law enforcement and the communities they serve.
And for what? What public interest was served by these prosecutions? Fening and Griffith weren’t accused of violence, property damage or interfering with police. They were accused only of being present while doing their constitutionally protected work.
The objective of prosecuting misdemeanors is punishment and deterrence — what’s the conduct that prosecutors were seeking to punish and deter here? Journalism?
At the end of the day, Kenton County recovered a sum that likely wouldn’t cover an hour of prosecutorial time. In exchange, it earned national attention as a jurisdiction either ignorant of or hostile to press freedom and the First Amendment. That’s an expensive $50.
Seth Stern is the Director of Advocacy at Freedom of the Press Foundation and a First Amendment lawyer.