The “fake news media” has been prosecuted throughout 2017 in the kangaroo court that is President Donald Trump’s Twitter account, but in a courtroom in Washington, D.C., the definition of journalism itself is on trial.
The answer to the question will decide the fate of one of six people currently on trial for their proximity to the protests that took place around Trump’s inauguration on January 20. Independent photographer and videographer Alexei Wood was arrested with hundreds of protesters, medics, and journalists in response to the violent actions of a few protesters on that day.
On Thursday, Wood’s attorney, Brett Cohen, tried to get jurors at the D.C. Superior Court to understand the distinction between his client’s coverage of the violent acts at the protest and the commission of the violent acts themselves.
In an interview with The Intercept, Wood said that part of the government’s case against him revolves around defining who is — and, in his case, isn’t — a journalist. That’s not a determination the state can make, he said.
“They can take issue with my professionalism and my style, but they can’t decide what is or isn’t journalism,” Wood said. “They don’t get to have that.”
Wood is an independent photojournalist from San Antonio, Texas, whose work focuses on resistance movements. He arrived in D.C. last January planning to document protests around the inauguration — both on January 20 and the Women’s March the following day. But Wood’s coverage of the weekend ended abruptly when he, along with over 200 others, were penned into an area at the intersection of L and 12th streets and arrested en masse.
Individuals arrested at the Inauguration Day protests, known as J20, are being charged under blanket statutes for crimes committed during the action, including bashing windows and other property damage. To make its case against nearly 200 defendants, the prosecution is using the Pinkerton liability rule, which attributes every crime committed during a conspiracy to all those involved. In practice, this means that all defendants on trial for the protests can be convicted for all crimes committed during the action by mere virtue of their proximity to the crimes committed.
Wood’s prosecution is alarming as a reflection of the government’s attempt to define — and criminalize — journalism, but the case as a whole also speaks to the government’s attempt to undermine the First Amendment right to political speech. “The government is prosecuting this case as though DisruptJ20” — the name given to the protest — “were a run-of-the-mill criminal conspiracy, where the only objective is criminal in nature, rather than a political demonstration designed to make a statement about the current administration,” Shana Knizhnik, an attorney with the ACLU-DC, told The Intercept in an email. “This framing undermines the fundamental principles of the First Amendment.”
“The concept of who is a journalist is so nebulous in today’s landscape,” Wood told The Intercept, referring to the prevalence of independent journalists. “The ability to produce information is democratized.”
Cohen, Wood’s lawyer, raised the question of citizen journalism in his closing argument last week. “What is a journalist?” he asked rhetorically. “One thing we know about journalism is that the internet’s kind of expanding that definition,” Cohen said to the jury. “More people are broadcasting things. More people are reporting things.”
If the prosecution has its way, Cohen argued, journalists will not be protected if their actions can in any way be construed as sympathetic to the movements they’re covering — up to and including such dubious ground as simply walking with a group of protesters who happen to engage in violent activities.
The prosecution had submitted into evidence live stream footage captured by Wood, during which he could be heard cheering as other people sprayed graffiti and broke windows. The court last week decided that Wood’s cheering of the act did not rise to the level of incitement.
In his bid to establish Wood’s credibility as a journalist, Cohen presented the court with emails between the journalist and editors at a San Antonio-based news outlet. In one email, Wood said he was “specifically focusing in on street friction, protest and support and police.”
Jim Naureckas, editor of media watchdog Fairness and Accuracy in Reporting, said he hopes the jury rejects the charges and rules against the government. Otherwise, the potential for accurate coverage of actions of dissent in American politics will suffer. “If these indictments are not rejected by juries,” Naureckas said, “we’ll see even less coverage of dissent than we already do, once it’s established that telling people about anything forbidden by police is the same as committing those acts.”
Naureckas added, “It’s truly an Orwellian moment.”
More than 190 defendants, six of whom are being tried now as part of the first group, face charges with maximum sentences of up to 50 years in prison. The initial trial entered its first day of jury deliberations and its 14th day overall on Monday. Despite the fact that attorneys for the prosecution have mishandled parts of the case so far — Judge Lynn Leibovitz on Thursday acquitted the defendants of incitement based on insufficient evidence — there’s still great potential for the case being used as the template for oppressive government action in the future.
It’s untested waters. “They’re trying to do stuff that there’s not settled procedure for,” said Sam Menefee-Libey, an organizer with the group Dead City Legal Posse, which was created to provide support to the J20 arrestees during their trials. “The prosecution and defense are testing untrodden ground to try to come out on top.”
“This case is just one example of this administration’s demonstrated contempt for the principles of free press,”said Knizhnik. “We can only hope it doesn’t go [further].”
Part of what’s complicating matters is the unique nature of the trial — both the prosecution and defense are figuring out the case law as they go. During court proceedings on December 14 and 15, the prosecution and defense teams held four sidebars with the judge to discuss the technicalities of the charges and iron out disagreements, court transcripts show.
Menefee-Libey told The Intercept that “the prosecution has been characterized by outrageous overreach” and that convictions based on the theory would have dire ramifications. “We can’t lose sight of the fact that the prosecution is relying on something that should terrify people if it works.”
Todd Gitlin, chair of the Ph.D. program at the Columbia School of Journalism, said the prosecution’s reasoning appears to be that by covering the J20 demonstration, Wood was publicizing the event and is therefore culpable for any crimes committed during the protest. “The principle here is horrific,” said Gitlin. “That anyone who is present as a recorder, a diffuser of information can be clapped into jail, that’s quite staggering.”
“Obviously this is a sinister development,” Gitlin added.
Massachusetts-based journalist Maya Shaffer, who often works with the Boston Institute for Nonprofit Journalism, told The Intercept the fact that there’s even a trial is “profoundly chilling” for the freedom of speech and a free press. “I have covered many protests — BLM, Occupy, and more,” said Shaffer, “and under the legal precedent I fear could be set by J20, I am concerned that simply being at a protest, even in a media role, is being criminalized.”
Alex Stokes is another journalist who was arrested on January 20, although the charges against him were dropped shortly thereafter. Stokes told The Intercept in October that he thinks the fact that he made so much noise about the arrest was likely why his charges were dismissed. “I talked to a lot of press and committees that deal with press freedom” in the weeks after being arrested, Stokes said. “Then I got a lawyer, pro bono — they dismissed the charges after that.”
Despite the fact that he went free, Stokes was present on the day of the trial’s opening statements to show solidarity with the other arrestees. The prosecution is threatening a free press, Stokes told The Intercept.
“If any of these defendants end up being convicted of anything given the lack of evidence, you can kiss both of those goodbye,” he said, referring to free speech and journalism. (Another journalist who faces charges, Aaron Cantú, has contributed to The Intercept, though he was not on assignment for the website on January 20.)
“The J20 prosecutions epitomize the criminalization of both protest and journalism,” Naureckas said. “You don’t have to break a window to face decades in prison — merely sharing the opinions of those who break windows, or informing the public about broken windows, is sufficient to bring down the full wrath of the state.”
Even if the government fails to convict any of the protesters on a single charge, the damage has been done. The time, money, and stress stemming from the prosecution will take a toll on the emotional and financial well-being of the defendants — and it sends a message to anyone planning an action in the future. “Regardless of the ultimate outcome of the trials, simply pressing these charges and forcing people to fight them is a drain on the defendants,” Shaffer said.
Enduring serious charges with decades of potential prison time has a chilling effect on both journalists and activists, especially in this political climate, said Kris Hermes, a legal activist and author of the book “Crashing the Party: Legacies and Lessons From the RNC 2000.” And, Hermes warned, the repression won’t stop with the type of protests that took place on January 20. “It’s not just the far left, anti-fascist, and anti-capitalists [at risk] from this demonstration,” said Hermes. “It’s all political and social movements writ large across the country that are at risk.”
“The only conclusion is that the U.S. attorney doesn’t believe in the rights of citizen journalists,” said Alex Rubinstein, an independent journalist who was himself arrested on January 20 while covering the protest for RT. Like the majority of established reporters who were arrested in the action, his charges were dismissed 10 days later.
Now all there is to do is wait. “We hope the jury sees through the smokescreen,” said Hermes.