The NYPD’s New Rules For Journalists Are Actually A Huge Step Forward

In this opinion piece, freelance journalist JB Nicholas argues that controversial new proposed rules for press credentials are actually an improvement.

Earlier this week, the NYPD released a new set of rules meant to regulate journalists who hold police-issued press credentials in New York City. The proposals were met with widespread condemnation from politicians and members of the press. The New York Post claimed they would “make it easier” for cops to yank press passes, while the New York Times’ editorial board argued that they “threaten press freedom.”

What these critics do not understand is that the current system is far worse, and that these hard-fought-over and carefully crafted rules will act as a meaningful check on the NYPD’s power to censor journalists.

NYPD-issued press passes make it possible for working journalists to cover breaking news, official press conferences and court proceedings. But on the back on every press card is a reminder that it is the property of the NYPD, and “may be taken away by competent authority at any time.”

That’s what happened to me in 2015, when I was working as a photographer for the Daily News on assignment at a building collapse. One construction worker was killed; another was alive but buried under rubble and seriously injured.

The NYPD had created a “designated press area” so far away from the rescue that actual rescue activity could neither be seen nor heard—a tactic the NYPD has long employed to censor news reporting.

Paramedics were loading the injured worker into an ambulance, so I walked out of an adjacent store I had been waiting in and took the photograph that would later lead the story. Stephen Davis, then the head of the NYPD’s press shop, took my press pass from me on the spot. “This is the last time you’ll do that,” Davis barked. My offense, he said, was not being a “team player.”

Davis didn’t explain exactly what he meant, but City Hall emails I obtained later did: the de Blasio administration did not want images of injured construction workers in the news.

I’ve had my press credential taken from me at least a half dozen times since 2006, and I’ve been arrested or detained for newsgathering activities at least four times—and I don’t recall any Times or Post op-eds being written on my behalf then. But this time, I wanted to fight it in federal court.

Acting as my own lawyer, I sued and won. It took eight months, but the NYPD returned my press credential. It was too late: my work as a Daily News photographer was over.

The City asked the court to dismiss my lawsuit, but Joel Kurtzberg of Cahill, Gordon & Reindel took my case. Kurtzberg convinced federal judge J. Paul Oetken that the seizure of my press credential violated the Constitution. That opened the door to negotiations about what meaningful, institutional reform of the NYPD's press credential system would look like.

During the discovery phase of my lawsuit, Kurtzberg and his team uncovered evidence that the NYPD had taken the press credentials of at least 9 other journalists—including one who worked for The New York Times for more than a decade before being let go after he was falsely arrested for photographing an NYPD stop-and-frisk gone wrong in the Bronx.

In each case, the journalists involved had no idea what they allegedly did wrong or what they had to do to get their credentials back. None asked for a hearing, because none were informed of their rights. The entire process resulted in unnecessary delays in getting the credential back, and gave the police way too much power over the people responsible for covering them.

What the NYPD did to me and my colleagues informed our legal strategy about what would be needed to prevent recurrences. That led to negotiations that yielded the proposed new rules.

“Under the current rule the NYPD has unlimited discretion to suspend or revoke journalists’ press credentials and provides virtually no notice or opportunity to be heard if there is a suspension,” Kurtzberg says. “By contrast, the proposed rule would circumscribe the NYPD’s discretion and would ensure that journalists are given notice and a full and fair opportunity to contest seizures of their press credentials.”

These proposed criteria include:

Of course, these criteria are not perfect. A journalist being told by an NYPD officer to “get on the sidewalk” could have his press pass snatched the next instant.

But if the NYPD misapplies these criteria, to lawful, constitutionally protected news-gathering, each becomes a clear reason for a judge to order the NYPD to give the credential back.

Currently, if a journalist asks for a hearing, the law fails to define how that hearing should be conducted. A journalist is not told what he has allegedly done wrong. They are not told what they need to prove to win at the hearing and obtain the return of the credential. The law fails to state who has the burden of proof and what the burden of proof is. Journalists are not permitted to see or challenge the evidence against them. Finally, the NYPD fails to give real reasons explaining its decisions. Before I asked for a hearing, no journalist had ever been afforded a hearing, the NYPD conceded in response to my lawsuit.

The proposed rules change this and detail precisely when and how the hearings must be held, including strict time limits on the NYPD. The proposed rules also place the burden of proof by a preponderance of the evidence on the NYPD, guarantee a right to counsel, guarantee a right to cross-examine potential police witnesses, guarantee the journalist's right to call witnesses and present evidence of his own, specify factors to be considered by the hearing officer and prevent the consideration of evidence in secret.

Since Judge Oetken's decision in 2018, the NYPD has seized few credentials, and the few they have seized have been returned within a week or two—in one instance it was a few days.

“The proposed rule is substantially better than the status quo and should be welcomed by members of the press and anyone who cares about the news,” Kurtzberg, my lawyer, says. “The proposed rule isn’t perfect, but it’s a huge step forward.”

Police departments across the country have acted with impunity for decades. There has never been a more important time for the press to scrutinize their actions. Should the NYPD be issuing press passes to begin with? If not, who? Even if the City Council legislated the authority to issue press credentials to another agency, that agency would still have to adopt rules to deal with suspensions and revocations -- otherwise it would have the same unrestrained power to seize press credentials that the NYPD had. What should those rules look like?

When it comes to regulating the press, no one has more reasons to distrust the NYPD than I do. No one has fought them more than me. Still, I follow the lead of Carol Crooks, a militant former prisoner who inspired the August Rebellion, a revolt by female inmates at New York’s maximum-security prison for women in 1974. After successfully settling a lawsuit against prison officials she reached a rapprochement with them in 1981.

”Sometimes,” she said, “prison inmates and officials can sit down at a table and settle things without rioting.”

The proposed rules will be given a virtual public hearing online August 18th, 2020 at 10 a.m, where the public and journalists will have the opportunity to comment.

To participate in the public hearing, enter this Webex URL. If prompted to provide a meeting number or password, please enter the following: Meeting Number 129 624 6274 Password 1234. You may also join the meeting via device audio or dial-in via phone. To dial-in via phone, please use the following dial-in phone number and participant code: Phone 1-408-418-9388 Access Code 129 624 6274. You can also join by video system by dialing [email protected]. You can also dial 173.243.2.68 and enter Meeting Number 129 624 6274. Whenever prompted for a password, the password is 1234.