This morning we argued a case about the freedom of the press before a panel of very engaged 1st Circuit judges in Puerto Rico.We represent a number of journalists who were kicked, punched and pepper sprayed by FBI agents. The FBI agents had been executing a search of an apartment in a condominium complex. As the search wound down and agents exited the condominium building, the reporters approached them for comment. The FBI agents responded by beating the journalists and spraying them with pepper spray.
We argue this violates the journalists' First Amendment right to gather the news and their Fourth Amendment right to be free of excessive force. The district court judge ruled against our clients even before there was any opportunity to gather evidence to support our side of the case. We appealed to the 1st Circuit.
The 1st Circuit judges were very lively and had a lot of questions for both sides. They were especially interested in whether the fact that our clients were journalists, rather than members of the general public, changed the analysis. We argued that it was especially unreasonable to use force against journalists because there was no reason to think they were approaching the FBI agents for any reason other than to carry out their jobs.
The judges did seem very concerned about the fact that the district court judge cut off the case before there was an opportunity to present more evidence to the court. For instance, we never had the chance to interview any of the FBI agents to learn more about the FBI's policies regarding treatment of the media in Puerto Rico. Hopefully the circuit will allow the case to move forward. For now, all we can do is wait to see what the 1st circuit decides.