Image via Wikimedia Commons

Protesters chanted in the Senate visitor galleries Tuesday as legislators prepared to vote to open debate on a bill repealing parts of the Affordable Care Act, prompting the Capitol Police to arrest the protesters—and, reportedly, to tell some journalists to delete photos or videos they had taken of the arrests.

The protesters began yelling “kill the bill, don’t kill us” from the galleries after Senate Majority Leader Mitch McConnell made his opening remarks. Asked to restore order, the Capitol Police removed the protesters and arrested some in the Senate hallways, where journalists trying to document the scene clashed with police and other officials.

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Daily Beast reporter Andrew Desiderio tweeted that “Capitol Police made me delete the video I recorded.” HuffPost reporter Jennifer Bendery tweeted that journalists were kept away from hallways where arrests were occurring—and that an officer pushed her when she tried to “get a look” at the protesters.

Reporters blocked from Senate halls where protesters being arrested, shouting, "Kill the bill!" Being told, "no photos. Delete your photos." — Jennifer Bendery (@jbendery) July 25, 2017

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Gabby Morrongiello, Washington bureau chief of the New York Post, tweeted that a Capitol Hilll staffer called the area a “crime scene” and admonished journalists “not to take photos.”

About 10 protesters were handcuffed & removed from hallway outside Senate chamber. We were told it's a "crime scene" & not to take photos — Gabby Morrongiello (@gabriellahope_) July 25, 2017

Morrongiello told CJR that the staffer works in a Senate press gallery. And the crime-scene comment struck Morrongiello as “unusual” because of the number of journalists who “capture crime scenes on a daily basis.” She added that there wasn’t time to argue with the staffer.

“There was a key vote happening in the chamber,” she said, “so most of us, once everybody had been arrested and escorted out, ran back to our desks to cover what was happening.” CJR could not reach Desiderio or Bendery.

Dave Weigel, a national political correspondent for The Washington Post, told CJR there was an increased security presence in the building because Vice President Mike Pence was there to cast the tie-breaking vote. Weigel said it’s common practice for journalists to refrain from taking photos or recording videos in the area of the gallery where the arrests were occurring. Although he didn’t hear any officer or official tell a journalist to delete footage (he had walked away to figure out where the arrestees were being processed), Weigel said it would be “unusual” for that to happen. He added that he was unaware of prior incidents in which a Capitol officer or official had told a journalist to delete something.

Responses to the clashes varied. The ACLU invited Desiderio to call if he believed the Capitol Police violated his rights, saying, “Police may not delete photographs without a warrant, period.” Mickey Osterreicher, general counsel of the National Press Photographers Association, said it was a “constitutional violation” for the police to require journalists to delete their photos and to prohibit photography in a public place where journalists had the right to be.

In an email to CJR, senior Senate staff said, “The Senate wing of the Capitol has regulations on areas of photography and videography. The taking of photos or video of any kind in the hallways on the third floor of the Capitol outside of the Senate Chamber is not permitted.”

The Senate Daily Press Gallery tweeted a similar message to its membership: “Photos and videos are prohibited on the 3rd floor of the Senate wing of the Capitol, and have been for decades.” The secretary of the gallery’s standing committee, Joseph Morton of the Omaha World-Herald, tweeted at Bendery, “Nobody should be forced to delete photos but also rule is no photos on 3rd floor. Reporters agree to follow rules by accepting credentials.”

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WITH THOSE COMMENTS IN MIND, let’s take a quick look at some of the laws and rules that govern press access to Congress.

To start, here are a few points about the press-gallery system, drawn from a Congressional Research Service report published in April and titled “Congressional News Media and the House and Senate Press Galleries.”

In the 1800s, the House and Senate created press galleries to manage their growing press corps, along with a committee of correspondents to administer each gallery and its membership. Today, one gallery and committee exist for the daily print press, the periodical press, the radio and television press, and press photographers—in both the House and Senate. Among other responsibilities, the galleries credential members, maintain Capitol workspace for them, and coordinate coverage for news conferences, hearings, and other events.

The discretion granted to each gallery and committee is up to the Speaker of the House and the Senate Committee on Rules and Administration. Within that discretion, the galleries and committees make rules regarding journalistic standards for their members. B eyond that, Capitol rules that apply generally to photography and audio/video also apply to journalists. An example: the rule that generally prohibits photography and video recording on the second and third floors of the Capitol, outside the House and Senate chambers.

A gallery’s day-to-day management falls to its nonpartisan staff hired by the House and Senate, while the more substantive responsibilities—like credentialing—fall to its correspondents’ committee, made up of gallery members selected by their peers. This is thought to preserve the press’s independence.

Violating a rule as a journalist could be grounds for a gallery/committee to revoke his or her credential—or simply not to renew it upon application.

I’d be remiss if I didn’t note the Kafkaesque experience I had in 2014 writing about the Senate Daily Press Gallery and its decision not to credential the website SCOTUSblog. What I experienced during my reporting was an opaque place filled with mostly unhelpful people who seemed immune to giving straight answers to questions—and didn’t understand their own rules. An excerpt from that piece:

“Gallery director Laura Lytle has been largely unable or unwilling to answer even general questions about the credentialing process and rules. The same goes for Siobhan Hughes, chairwoman of the Standing Committee, a group of journalists that makes the credentialing decisions. Of the committee’s other four members, one declined to talk with me and three did not respond to my queries. … Lytle’s unhelpfulness was frustrating, to be sure, but the committee’s opacity truly surprised me, because the members are journalists—part of a trade whose institutional ethics favor openness in service of accountability.”

All to say: I wasn’t entirely surprised when I read that a press gallery staffer was involved in Tuesday’s episode.

Calling a public space a ‘crime scene’ does not magically transform it into something that cannot be photographed and whose images must be deleted

FINALLY, A FEW POINTS beyond the press-gallery system:

Journalists have the general First Amendment right to record what occurs in public spaces, including police activity. I’m sure, though, the Capitol Police could argue successfully that certain parts of the Capitol are subject to media restrictions (e.g., those regarding photography and video/audio on the second and third floors, outside the House and Senate chambers ).

Journalists have Fourth Amendment protections against unreasonable searches and seizures of their persons and equipment, and they have rights under the Privacy Protection Act, a federal law that generally requires law enforcement officers to get a subpoena to search or seize a journalist’s documentary or work-product materials. That includes photos and videos.

Police may not delete footage, photographs, or social media posts from a journalist’s device, nor can police force a journalist to do those things. Similarly, c alling a public space a “crime scene” does not magically transform it into something that cannot be photographed and whose images must be deleted.

Do. Not. Delete. Them. That's not how this works. Police can't make journos delete photos/video. https://t.co/IQl4W2kbyI — Jonathan Peters (@jonathanwpeters) July 25, 2017

Police may order a journalist to stop doing things that are actually interfering with legitimate law enforcement activities.

Let’s keep these things in mind as we learn more about what happened Tuesday.

CJR’s health care reporting is sponsored in part by a grant from the Commonwealth Fund.

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Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.