Ohio newspaper Toledo Blade agreed to dismiss with prejudice its federal lawsuit after the U.S. government agreed to pay a lump sum of $18,000.
The lawsuit was filed in April following a photographer and journalist for the newspaper being detained and restrained by armed military police, their cameras seized and photos deleted after snapping a few photos of a tank manufacturing plant.
“The Blade is pleased with this resolution of the crucial First Amendment issues at stake in this matter,” said Toledo Blade attorney Fritz Byers, though I can’t imagine why.
The government admitted no liability or fault and the sum it agreed to pay is “for all claims, attorney fees, and costs”.
In the Beginning
The incident at hand took place on March 28, 2014 when photographer Jetta Fraser and journalist Tyrel Linkhorn were in Lima covering a news conference at a Ford Motor plant.
After the conference had ended the two continued to photograph businesses in the area for future use, said the Blade. One of these was a tank manufacturing plant known as the Joint Systems Manufacturing Center.
Fraser took half a dozen or so photos from the driveway entrance area of the plant, where there is no fence or gate preventing people from approaching. The pair said they did not enter the plant’s gate or pass the unmanned guard hut that is located about 30 feet from the road.
As Fraser and Linkhorn were leaving they were stopped by three armed military police officers, but despite presenting their newspaper and media credentials they were not allowed to leave. Fraser refused to show her driver’s license as she was not the driver, which led to her being removed from the vehicle and detained in handcuffs for over an hour.
Fraser also claimed that the officers referred to her “in terms denoting the masculine gender”, and after she asked to be referred to as a female she was told “You say you are a female, I’m going to go under your bra”.
According to the photographer one of the officers told her that photographing the plant’s power supply, which can easily be seen from the street or even Google Earth, raised the “suspicion of terrorism”.
The military police eventually released the pair but kept the cameras, telling Fraser that no part of the plant is to be photographed.
Following the Blade’s protest, U.S. Senator Rob Portman’s office contacted General Dynamics which lead to the plant’s manager, Keith Deters, to later state that he convinced the MPs to release the seized cameras after a review of Fraser’s photos.
The cameras were released approximately seven hours after being seized, despite Fraser being told earlier that the cameras could be released only after a security coordinator will review her photos and that the person would not be at the plant until after the weekend. I guess receiving a call from the senator gets things done a bit faster.
When a Blade staff photographer picked up the cameras from a military police commander she noticed that the photos of the plant were gone.
When asked if the military deleted the photos of the exterior of the plant, the commander said that it was a representative from the facility who did so. The plant manager, however, claimed that no one from General Dynamics came in contact with the confiscated cameras.
Photos of another facility in the area, a Husky refinery plant, had also vanished.
Just one week after the infuriating incident, the Blade had filed a federal lawsuit on behalf of Fraser and Linkhorn.
The lawsuit stated that the pair was unlawfully detained and that they were prevented from exercising their constitutional rights. It also stated that Fraser was unlawfully restrained and received unlawful threats of bodily harm, that the cameras were seized unlawfully and the photos deleted.
Claiming the pair’s First, Fourth and Fifth Amendment rights and the First Amendment Privacy Protection Act were violated, the lawsuit stated:
“At all material times, Plaintiffs Fraser and Linkhorn were present in places that were open to the public and in which Plaintiffs had a lawful right to be.
At all material times, Plaintiffs Fraser and Linkhorn were engaged in fully lawful and constitutionally protected conduct, observing and photographing subjects that were and are open to public view and that Plaintiffs had full legal and constitutional rights to observe and photograph”.
[Note: this section goes on to describe how and why pretty much everyone at the Blade, and the NPAA, thought the Blade was right and the military police was wrong. Feel free to scroll down if you got the point.]
It continued to describe the wrongdoings that had occurred:
“Indeed, [the] Defendants’ wanton disregard for the Constitution and for federal law reached not only to destroying the photographs that were the supposed reason for their conduct but also to the destruction of other photos that had absolutely nothing at all to do with the Joint Systems Manufacturing Center”.
Fritz Byers, the Blade’s attorney, expressed his opinion in the matter:
“The harassment and detention of The Blade’s reporter and photographer, the confiscation of their equipment, and the brazen destruction of lawful photographs cannot be justified by a claim of military authority or by the supposed imperatives of the national security state”.
In the lawsuit, which named U.S. Secretary of Defense Charles Hagel and Commandant of the Joint Systems Manufacturing Center Lt. Col. Matthew Hodge, among others, the Blade asked for unspecified compensatory and punitive damages. It also asked the court to declare the incident a violation of constitutional rights and prevent similar cases in the future.
“Nothing I did nor Tyrel did earned their disrespect,” Fraser said. “We did nothing disrespectful to them”, adding that she was treated in a “disrespectful and discourteous way”.
“I really don’t understand what I was not allowed to photograph. If I can see it from the road, it’s available to the public eye,” said the frustrated photographer. “If there is something terribly significant there, then they should probably hide it from the public”.
“I don’t want this to be about me or The Blade necessarily,” said Linkhorn. “I just want to make sure that laws are followed properly and that people have the freedom that they should have”.
Linhorn added the following:
“My biggest concern is that we were doing something that I believe we were within our rights to be doing, not because we were journalists, but because we are U.S. citizens and we were simply taking photos from public property”.
The NPPA (National Press Photographers Association) general counsel, Mickey Osterreicher, added his $0.02 to the conversation stating that the Blade’s team had done nothing wrong and that the military police should have let them be: “From our point of view, these are people [who] completely overstepped their authority, probably because they were bored”.
Managing editor of the Blade, Dave Murray, joined Fraser and Linkhorn in filing civil rights complaints with the FBI:
“The Army does not have the right in this country to detain journalists, handcuff them, seize their cameras, and destroy our work product on the whim of an overzealous military police officer.
The photos Ms. Fraser took were taken outside the secure perimeter of the tank plant and were photos that anyone with a cell phone could take as they drive by”.
Last but not least the paper’s publisher and editor-in-chief, John Robinson Block, chimed in as well. According to the Blade itself, Block was “confident The Blade and its journalists would be vindicated in court, and he hoped the federal government would acknowledge the journalists’ constitutional rights had been violated”. He added:
“I’m personally shocked by this incident. I believe our people were totally in the right.
I don’t believe this is a close call at all, unless someone abolished the First Amendment and the Fifth Amendment without telling us”.
So What Happened?
This is part of the settlement, copied from the court documents:
“This stipulation for Compromise Settlement and Release is not, is in no way intended to be, and should not be construed as an admission of liability or fault on the part of the United States of America, its current and/or former officers, agents, servants, or employees, including any federal defendant in the referenced civil action and it is specifically denied that they are liable to the Plaintiffs. This settlement is entered into by all parties for the purpose of compromising disputed claims under the First Amendment Privacy Protection Act in the referenced civil action and avoiding the expenses and risks of future litigation”.
So after all that, why did the Blade end up settling?
How did the Blade go from requesting unspecified compensatory and punitive damages, a court declaration and an apology to withdrawing its lawsuit with prejudice but without an admission of liability or fault?
The only possible explanation I can think of can be found in the last sentence of the quote above. Taking the government to court can easily turn into a battle too expensive for most to fight. But, if that is the case, why not come out and say that’s the reason you’re giving up on everything you tried to achieve?
Why say you’re “pleased with this resolution of the crucial First Amendment issues at stake in this matter” when it wasn’t resolved?
Obviously the Blade knew what it was getting into, as it had previously sued the National Transportation Safety Board for detaining its photographer and seizing his film (yes film, it was back in 1997). That happened while the photographer was working at the scene of an airplane crash.
In that case the Blade settled as well, but it was a much more favorable settlement than this one; the NTSB apologized, admitted it had “compromised the constitutional rights of Mr. Long and The Blade, and do not appear to have been authorized by existing federal law, regulation, or order” and coughed up $26,000.
According to the Blade, it will donate $5,000 of the settlement money to the Reporters Committee for the Freedom of the Press.
More interestingly, though, the paper reported that as part of the settlement it agreed “not to publish, distribute, reproduce, sell, or share any of the photographs taken of the Joint Systems Manufacturing Center”.
I’ve got no idea why such a clause would be included, unless the memory cards weren’t formatted and the military police found out only after the fact that data could be restored.
If that was the case, the military police has much bigger problems than people taking photos of the outside of its plant.
I contacted the Blade requesting its response on why it settled. I’ll update this post as soon as I receive it.
[Lead Image: Victor]