Rule status: Proposed
Comment by date: August 18, 2020
Rule Full Text
The New York City Police Department (“NYPD”) is proposing changes to the rules that governs the adjudication of hearings for the suspension and/or revocation of press credentials issued to members of the press. The change would amend section 11-11 and repeal section 11-12 of Chapter 11 of Title 38 of the Rules of the City of New York.
Online comments: 0
Free press should be the default not the exception. The NYPD has made it exceedingly clear by this rule that it does not adhere to that mandate. This rule would make it dangerously easier for NYPD to mute journalists’ ability to report on police activities. And it proves the police department is not trustworthy decision maker regrading press credentials. Therefore, determinations about press credentials should not remain at NYPD’s discretion. Such determinations should be made by an independent office, wholly separate from the NYPD.
Having been successfully sued in federal court for what amounts to vindictive punishment of a press photographer, the NYPD are now being forced to establish new protocols regarding due process and hearings for revoking media credentials.
It’s alarming to realise, the organization we as society have entrusted to uphold our laws, weren’t capable of establishing an appropriate hearing and due process system for members of the press in the first place. It’s frustrating they had to be sued and agree to establish them as apart of a settlement.
However what really takes the biscuit is their attempt to use this settlement agreement to stray from solely creating a codified due process for members of the press who have had their credentials revoked, but to rewrite the rules around how press credentials can be revoked in such vague and general terms that it empowers any officer to take them at any moment for almost any whimsical reason.
Firstly this is a clear and blatant attempt to curtail and control the activity of the working press around crime scenes and other sites deemed sensitive in order to hamper their news gathering abilities by using fear of revoking credentials. Credentials that in New York City amount to a license to practice Journalism. Secondly they are designed to be so vague that any justification can be used to take press credentials and make it extremely difficult to be sued again
This proposal is a transparent attempt at a vindictive retaliation. The NYPD now intends to punish the entire press corps for their own defeat in court.
These proposed rule changes are an affront to our first amendment rights and clearly unconstitutional. The problem is when the NYPD ignores our objections and brings them to bear, these rules will stand in place until someone once again has the time, energy and money to challenge them in federal court.
It is clearly apparent that the NYPD cannot be trusted to handle issuing press credentials appropriately, and is in itself inappropriate and questionable that a law enforcement agency is issuing press credentials in a free and open society in the first place.
Beyond this proposal I believe it is time to remove the NYPD‘s ability to issue a press credential and entrust that responsibility somewhere else.
I did good here, as explained in my Gothamist opinion piece.
In short, if the NYPD takes a journalist’s NYPD-issued press credential, the proposed rules for the first time guarantee the journalist a fair hearing with full Fourteenth Amendment due process rights, including the right to cross-examine potential police witnesses. Further, the right to a full and fair hearing, if an NYPD press credential is taken from a journalist, will operate to protect the First Amendment right to gather news by making it harder for NYPD officers to take press credentials from journalists in the first place. Cops will no longer be able to take a credential simply because they want to.
Separately, concern about the vagueness of the proposed conduct rules in § 11-11(b)(1) can and should be fixed by amending the proposed conduct rules in § 11-11(b)(1) as detailed in Exhibit A, submitted herewith. Likewise, concern that the NYPD officers designated to conduct the newly-required hearings will be biased and partial because they are NYPD officers can and should be fixed by adding the defenses to § 11-11(b)(8-9), covering the summary suspension of NYPD-issued press credentials, as detailed in Exhibit A, submitted herewith.
These suggested amendments and additional provisions to the proposed rule detailed in Exhibit A add sections of the NYPD Patrol Guide that guarantee NYPD credentialed journalists the specific legal protections cited. The suggested amendments also mandate acquittal if these provisions are violated by an NYPD officer taking an NYPD-issued press credential. I urge incorporation of these suggested amendments and additions to the proposed rules.
Aug. 14, 2020
Does anyone have an exact link to the proposed changes?
The New York Times Company’s public comments are attached.
I respectfully submit the comment below as general counsel for the (NPPA), joined by the Committee to Protect Journalists (CPJ), New York News Publishers Association (NYNPA) , New York Press Photographers Association (NYPPA), First Look Media’s Press Freedom Defense Fund (PFDF), the Radio and Television Digital News Association (RTDNA) and the Society of Professional Journalists (SPJ) respectfully submit the following comment.
As a member of the Media Law Committee of the New York State Bar Association (NYSBA) I respectfully submit our comments.
Enclosed is the comment letter of Jason B. Nicholas.
Comments from the Reporters Committee for Freedom of the Press are attached.
To Whom it May Concern,
My name is Jere Hester. I am the editor in chief of THE CITY (thecity.nyc), a nonprofit, nonpartisan news site dedicated to serving the people of New York through hard-hitting reporting.
I appreciate the opportunity to weigh in on the proposed rules that govern the adjudication of hearings for the suspension and revocation of press credentials issued to members of the media — including our staff of journalists at THE CITY.
While I also appreciate the proposal to create criteria for the suspension and revocation of press credentials, and clear procedures for the handling of such cases, our team at THE CITY believes the effort is misplaced.
The NYPD should no longer be charged with issuing credentials — and the Police Department certainly should not be heading a process where it is essentially cop, prosecutor, judge and jury in the suspension and revocation of press credentials.
The system, current and with proposed alterations, presents clear dangers of serious conflicts of interest involving the NYPD and a free press charged with aggressively reporting on all aspects of public life, including policing. To start with, a police department should not be in the business of essentially deciding who is a journalist.
We at THE CITY are calling for a vigorous open discussion and debate on revamping the credentialing system. There’s a wide range of possibilities to be considered — everything from creating a new city credentialing office to putting the job in the hands of a professional group, a la the Bar Association.
We’d be interested in being part of that debate. But what we’re certain of is that any adjudication of suspension or revocation would need to be in independent, impartial hands — not the responsibility of a police force with undue influence and power over every step of the process.
A larger public give-and-take over the issue is warranted when one agency has the power to give and take away an important tool in carrying out professional duties protected under the First Amendment.
Thank you for this opportunity to have a say on behalf of THE CITY.
Editor in Chief
THE CITY (thecity.nyc)
The NYPPA board voted in favor of backing the NPPA attorney revisions authored by Chief Counsel Mickey Osterriecher, to the rules and regulations regarding the suspension and revocation of the press card. (See NPPA revisions)
We understand that the press card is a security clearance and not a license to practice journalism. However, it should be recognized that taking up the card impacts a journalists ability to cover the news in this city and access government buildings including the courts and City Hall.
It is important that the rules regarding any suspension or revocation of the card first allow for discretion of DCPI to summarily allow for return of the card upon summary investigation that finds that the card may have bene improperly taken up, or the offense that is alleged is so minor as to not require a hearing at all. This has been most of the experience over the years, with a hearing on suspension or revocation a rarity.
Further, the NYPD should provide proper instruction to its members to make sure that an unfettered press is vital to the city and is in keeping with the Constitution. Despite offers in the past, the NYPD has turned not taken advantage of offers by veteran media members to talk to classes of officers and its commanders to share experiences and discuss access in difficult situations.
There certainly has not been enough give and take between those who cover demonstrations, civil unrest and other types of events and the members of the NYPD, and that needs improvement.
Also, we request that press card qualifications include reciprocity between various police agencies, and not just the NYPD. The card should reflect the concentration of that media member – whether it be MTA police, court officers or state police in different state jurisdictions.
Again, we support the NPPA revisions and hope that the NYPD will move them to approval that will make-due process a part of any issues with the media moving forward.
Vice President, NYPPA
Further restricting the 1st amendment guarantee of press access to cover police and government actions, should not be done frivolously. We do not need further restrictions on credentials. And in the current climate of daily civil demonstrations on the streets, the fox guarding the hen house should not be allowed to dictate any further restrictions
Public comment by The Associated Press on the proposed rule governing press credentials.
I am not a member of the press but I am a 30 year citizen of NYC and am appalled that the NYPD possesses and exerts control of press credentials. It is certainly clearer to me now why excessive force and police brutality and accountability have been permitted to go unchecked for so long. The NYPD has the means to control(direct) the narrative through its untenable control of the press. The founders of this country recognized the critical importance of a FREE press for the preservation of liberty and Democracy. Control by law enforcement, especially a militarized, abusive agency like the NYPD highlights exactly what the founders feared. Control of press credentials should be removed completely from the purview of the NYPD-immeidately.
Please see attached response.
From Mickey Ostereicher’s response:
“We feel strongly that the proposed rule fails to define those determinations clearly and narrowly and affords the department far too much discretion by which to threaten to seize or actually seize credentials.”
Currently while society is figuring out what to do with our police, media presence makes many an officer nervous. I find it particularly interesting that with all the current talk of “defunding” that DCPI would choose this moment in time to make a course correction in 11.11 in the first place.
Much of the proposed rule changes centers around how to punish bad media who interfere with police business. The most common tools the police use to punish media are the usage of Penal law 240.20 (Disorderly Conduct) and 195.05 Obstruction (Government Administration).
Both rules conspicuously note the words “with INTENT”. No member of the media INTENTIONALLY means to interfere with police business , yet immediately are treated as criminals when the officer capriciously decides his work was violated.
Several years ago Ny Times photographer Robert Stolarik was in the Bronx covering a stop and frisk story. He wound up being part of the story,and was summarily arrested. Several years and many court appearances later , The District Attorney determined that the officer lied and the charges were dropped. The officer later was charged and convicted of Felony Falsification and was fired from the force . Stolarick’s career was never the same.
An implicit presumption with the proposed rule changes is the assumption that media intentionally disrupt events and need strict focus on their news gathering activities. So assuming we make these changes to 11.11 , what then are the proposed rules for punishment of officers who violate the law and direct vexatious , vengeful and predatory behavior on innocent members of the media?
Lastly in my specialty of coverage, entertainment and special events, I constantly find many private security companies hire connected police officers in uniform and plain clothes to unlawfully expand on what is actually permitted by law. Photographers , specifically are hassled, blocked , threatened and pushed around by these “moonlighting” security guards to entertain the wills and desires of those who hire them, conveniently altering the rules for their clients and many a time calling an “on duty” officer , flashing a badge to help assist removing the offending media person. So again DCPI should be on guard to help assist the media when those officer infractions occur. Years ago , Chief Collins was very helpful with the moonlighting issue, I would like to find brass at the current DCPI to go to when the integrity of the badge is violated in these conditions.
In summation it’s clear that whatever DCPI decides with the proposed administrative media rule changes will fall under scrutiny of the Comptrollers Office, the Council and The Mayor , who have the authority to embellish their wish lists as well.
Let’s go back to the good old days when the NYPD and the media use to work together to make a better city.
My name is Gale A. Brewer and I am the Manhattan Borough President. Thank you for the opportunity to submit comments on these proposed rules.
A free and independent press is an essential partner in every constitutional government, and New York City is no exception. Local journalists act as a powerful check on institutions and leaders, keeping government transparent, and everyday people informed and engaged. This spring, our local press performed critical work, connecting and uniting us as New York City overcame its status as the global epicenter of the coronavirus outbreak. This summer, the same journalists have been instrumental in documenting city-wide protests, both cooperation and clashes between citizens and the NYPD, and amplifying the voices of activists calling for justice and accountability.
Journalists need access, official recognition, and protection to work effectively. They cannot hold our institutions accountable if they face retaliation from city leaders or those very same institutions. These proposed rules give the NYPD overwhelming authority to revoke press credentials for almost any reason, allowing them to end the careers of the very reporters who would hold them accountable. The NYPD’s discretion is currently too broad. The NYPD should not be able to unilaterally decide who deserves to be called an official journalist in the City of New York. Therefore, I urge the NYPD under your leadership to rewrite the proposed rule changes, and I call on the Mayor to move credentialing authority to another agency.
A free press must remain free from outside influence today and every day. It is the bedrock of our public First Amendment freedoms.