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Photo by Tony Webster | CC BY 2.0

Veteran journalist Amy Goodman claimed victory Oct. 17 after a North Dakota judge promptly dismissed a criminal charge filed by a state prosecutor against her for reporting on protests by Native Americans against the construction of an oil pipeline through their lands. Most civil liberties experts viewed the case as a form of intimidation against journalists, with some calling for the prosecutor, state’s attorney Ladd R. Erickson, to face professional sanctions for bringing the “riot” charge against the host of the Democracy Now! news program.

Another journalist, Deia Schlosberg, also is facing criminal charges for covering a pipeline protest in North Dakota. Unlike the failed prosecution of Goodman, the charges brought against Schlosberg, producer of filmmaker Josh Fox’s new documentary “How to Let Go of the World and Love All the Things Climate Can’t Change,” may not represent a clear-cut example of prosecutorial overreach.

Goodman was covering a large public protest in North Dakota against the construction of the Dakota Access Pipeline. Schlosberg, on the other hand, traveled with a pair of climate activists — all three in the same vehicle — to a remote area in Pembina County, N.D., near the Canadian border where TransCanada Corp. owns and operates a valve station for its existing Keystone Pipeline. The form of protest that Schlosberg was documenting turned out to be pipeline sabotage. After entering a fenced-in area owned by TransCanada on Oct. 11, one of the activists turned a manual safety valve to shut off the flow of oil through the pipeline, an action that Schlosberg documented with her camera.

On Oct. 13, two days after her arrest, Schlosberg, along with activists Samuel Jessup and Michael Foster, was charged with three felony counts of conspiracy, charges that carry a maximum penalty of 45 years in prison. Foster, who allegedly was the activist who turned the pipeline valve, was also charged with trespassing and criminal mischief.

Cutting the flow of oil on the Keystone Pipeline was one of five coordinated actions on Oct. 11. The audacious acts at the five valve stations were designed to raise awareness of the impact of oil production and consumption on the climate. The activists reportedly stopped the equivalent of 15% of U.S. oil consumption for a day.

Fox, who also made the Oscar-nominated “Gasland” documentary, drafted a letter, signed by several journalists, activists and celebrities, calling on prosecutors to drop the charges against Schlosberg. “Deia Schlosberg was exercising her First Amendment right as a journalist,” Fox wrote in the letter. “Journalism, especially documentary filmmaking, is not a crime, it’s a responsibility. The freedom of the press is a fundamental right in our free society. The charges filed against her are an injustice that must be dropped immediately.”

“There are a number of celebrities signing a petition declaring she is a journalist and that she has a First Amendment right to do these things,” Kevin Z. Smith, a former reporter and past president of the Society of Professional Journalists, said in an interview. “That’s a little misguided. Trying to invoke the First Amendment is probably a stretch. The First Amendment does not protect you against becoming an accessory to criminal activity necessarily. You have to be careful saying, ‘Well, I’m a journalist. Therefore, I have a First Amendment right to report things.’ It doesn’t necessarily absolve you.”

However, many questions still need to be answered, including whether Schlosberg knew that a crime was going to be committed when she traveled with the two protesters, Smith emphasized.

In a statement released Oct. 18, Schlosberg did not directly address whether she knew a crime was going to be committed when she rode with Foster and Jessup to the TransCanada valve station. But Schlosberg stated she felt it was her duty “to document the unprecedented #ShutItDown climate action, which stopped all Canadian oil sands from entering the United States.”

The Climate Disobedience Center, a nonprofit group founded by Tim DeChristopher and other environmental activists, served as publicists for the ShutItDown action and is providing post-action support to the activists. Marla Marcum, a cofounder and director of the center, noted that Schlosberg is facing conspiracy charges even though she was not involved in the planning of the action.

“Not only did she not do the action, she didn’t conspire to make the action happen,” Marcum said. “I couldn’t tell you how much she knew or didn’t know. But she wasn’t one of the planners. Because of that, the conspiracy charges are absurd.”

Documentary filmmaker Lindsey Grayzel and cinematographer Carl Davis were arrested and jailed for documenting a similar action on the same day in Skagit County, Wash. As with Schlosberg, their footage of the action was confiscated by police. Grayzel and Davis were filming activist Ken Ward attempt to shut down Kinder Morgan Inc.’s Trans Mountain oil pipeline. Both filmmakers reportedly were outside a fenced area while they were filming what was taking place inside the fenced area.

From a legal and a journalism ethics standpoint, the main question is what Schlosberg knew before she left to cover this event, Smith said. “If you are a journalist and a documentary filmmaker and people say, ‘I’m going to commit crimes. I want you to come along with us and I want you to videotape this so you can have it for your documentary,’ there’s a strong legal argument that she would be an accomplice in this,” he explained. “The question for me that I don’t have an answer to is how much did she know before she left?”

A reporter has a weaker defense, according to Smith, if he or she knows ahead of time that criminal activity will occur when accompanying a group of people. But a reporter would have a better legal case if he or she travels with a group of people who “decide spontaneously to shut off a pipeline,” he said. In a case where actions are fluid and unpredictable, a reporter does not necessarily have an ethical obligation “to interfere with them and tell them what they should or shouldn’t be doing,” he added.

Fred Brown, a former editor at The Denver Post and a teacher of communication ethics at the University of Denver, contends journalists should not break the law except in extremely rare circumstances where there is no other way to get a legitimate story. “This is more of a manufactured event than a news story,” Brown said, referring to the action at the Keystone Pipeline valve station.

Citing his confliction over press shield laws in many states that partly protect reporters from revealing sources or having their notes or work confiscated, Brown, who edited the latest edition of the book “Journalism Ethics: A Casebook of Professional Conduct for News Media,” noted, “The First Amendment applies to all citizens, not just journalists.”

Prior to the action, the activists consulted with a pipeline engineer about how to safely shut off the valves and were told that if companies had 15 minutes of warning time, they would be able to initiate their emergency response procedures to safely shut down the system. The activists called each of the pipeline companies at least 15 minutes in advance of each valve closure. Similar to the tactics used by anti-nuclear activists of the Plowshares Movement, the oil pipeline protesters chose to make their identities known and waited at the sites for the police to arrive after they shut off the flow of oil.

Derrick Jensen, an author and cofounder of the radical environmental group Deep Green Resistance, said activists often will openly commit illegal acts because they hope to use the entire process, from the action itself to serving prison time, as a means to get their message out about the importance of their cause.

“If the purpose is symbolism, then of course one would want to maximize the opportunities to spread your message. The hope there is that by spreading one’s message enough that popular opinion will force a change in policy,” Jensen said. “If the primary purpose is not symbolic, but rather physical, in that one’s best hope is to shut down or stop in this case pipelines by physically destroying them, then it would make sense that the person would not want to be caught.”

Marcum explained the coordinated acts were not purely symbolic. “Actions like these can spark the moral imagination of people everywhere to realize, ‘We could do something huge.’ It wouldn’t have to be manually turning off valves on pipelines. I wouldn’t recommend doing that unless you know what you’re doing,” she said. “It’s a message to the industry that people aren’t going to take business-as-usual anymore. Business-as-usual is over.”

Jensen sees a double standard in how journalists are viewed when they are covering acts that are violent or cruel, but are not officially classified as illegal. “Of course when filmmakers film U.S. war crimes and praise them, they are called ‘mainstream journalists.’ And when people film the destruction of forests, they are called filmmakers for the History Channel or Animal Planet or National Geographic or whatever company put out that show they had on loggers,” Jensen said. “So if those in power like the action that is being committed, no charges would be brought, and the person might get major book deals and awards. And if those in power don’t like the action being committed, charges will be brought. That’s how the system works.”

In an Oct. 19 letter to North Dakota and federal officials, the Society of Environmental Journalists (SEJ) condemned Schlosberg’s arrest. “Schlosberg was filming a protest event that was newsworthy. Whether the protesters’ actions were legal or illegal is irrelevant,” the SEJ said. “She was acting as a journalist, not a protester. Hers is yet another case where North Dakota prosecutors have wrongly based criminal charges on defining a journalist as a participant in the event she was covering. This poses a grave threat to the rights of journalists in many other situations.”

Schlosberg and her supporters should not be surprised she is facing criminal charges, especially with how poorly journalists have been treated by the government in recent decades, Smith said. “We’re going to see more animosity, more resentment, more hostility to journalists, whether that’s from the public or it’s from the government,” he said. “The government has shown an indication that they will prosecute journalists and prosecute them readily.”

Smith hopes Schlosberg is treated fairly by the North Dakota justice system. “I would not want to see her going to jail for being there videotaping that, even though she may have known ahead of time what was going on,” he said. “That starts sending a developing-country kind of mentality toward the press, and I don’t want to see that happen.”