Freedom of the Press Under Assault in New York City

By Pam Martens: September 4, 2012 

Police Commissioner Raymond Kelly Inside the Lower Manhattan Security Coordination Center

The reality of what is happening in New York City has eclipsed the human capacity to absorb it. Four years after crippling the U.S. economy, Wall Street is still settling new cases of fraud each week by paying a fine and moving along to the next fraud and the next fine.  Citigroup settled three cases just last week.  This is the culture that landed the U.S. within a hairsbreadth of the second Great Depression and yet, incomprehensively, the coddling of the crime denizens continues while the media who attempt to cover protests against that culture are battered and jailed along with the protesters. 

Exhibit A on the list of New York City insanity is the spy center created by the NYPD to cohabitate with Wall Street using $150 million of taxpayer funds – the Lower Manhattan Security Coordination Center.  Firms like Goldman Sachs, Citigroup, JPMorgan sit alongside the NYPD and spy on law abiding journalists and protesters while $800 an hour lawyers settle the firms’ misdeeds for pennies on the dollar a few blocks away in the Court complex.

Now lawsuits are stacking up in those same courts showing a practice and pattern of physical assault on the media as well as illegally withholding documents from reporters who file Freedom of Information Law (FOIL) requests. 

Attacks on the First Amendment’s freedom of the press guarantees have been going on for years in New York City but reached critical mass on the night of November 15, 2011 when Police Commissioner Raymond Kelly was personally on hand to supervise the 1 a.m. raid and eviction of Occupy Wall Street protesters in Zuccotti Park.  

Kalle Lasn and Micah White, editor in chief and senior editor, respectively, of Adbusters magazine, credited with providing the original spark for the Occupy movement, described the raid in an oped for the Washington Post a few days later: 

“Bloomberg’s raid was carried out with military precision. The surprise attack began at 1 a.m. with a media blackout. The encampment was surrounded by riot police, credentialed mainstream journalists who tried to enter were pushed back or arrested, and the airspace was closed to news helicopters. What happened next was a blur of tear gas; a bulldozer; confiscation or destruction of everything in the park, including 5,000 books; upward of 150 arrests; and the deployment of a Long Range Acoustic Device, the infamous ‘sound cannon’ best known for its military use in Iraq…” 

A few days later, on November 21, 2011, George Freeman, Assistant General Counsel of the New York Times, wrote to the NYPD on behalf of The Times, the New York Post, New York Daily News, National Press Photographers Association, Associated Press, NBC, WABC TV, New York Press Photographers Association, Dow Jones, WCBS TV, and Reporters Committee for Freedom of the Press.  Freeman described attacks on mainstream media that were more reminiscent of a military junta than in a country that regularly lectures the world on the finer details of democracy.   

Freeman wrote: “…credentialed media were identified, segregated and kept away from viewing, reporting on and photographing vital matters of public concern.  A press pen was set up blocks away and those kept there were further prevented from seeing what was occurring by the strategic placement of police buses around the perimeter. Moreover, there have been numerous instances where police officers struck or otherwise intentionally impeded photographers as they were taking photos, keeping them from doing their job and from documenting instances of seeming police aggression.” 

Freeman cited specific examples of police brutality to working media: during the November 15 eviction raid on Zuccotti Park, an NYPD “Community Affairs member grabbed one newspaper photographer and dragged him from the park. At the same time this Community Affairs officer also threatened to arrest another credentialed photographer for being inside the park.”  Two days later, on November 17, a female photographer with clearly visible press credentials, was advised by the NYPD to move to the sidewalk. “As she moved towards the sidewalk, another officer told her to move to the sidewalk on the other side of the road. A short time later, before she got to any sidewalk, she was grabbed by a third officer and thrown to the ground, hitting her head on the pavement.” 

On the same day, November 17, Freeman relates how a female reporter was standing with a group of photographers “when a group of police officers moved towards them and started pushing the group back. One officer, described by the reporter as very tall (approximately 6’5″), shoved the reporter with both his arms, forcing the reporter to fall backwards, landing on her right elbow, and resulting in her yelling in pain. The reporter said the officer then proceeded to pick her up by the collar while yelling ‘stop pretending.’ The reporter went to Bellevue Hospital for treatment of her injuries.” 

Another incident reported by Freeman involved a male photographer who was photographing a man the police were carrying out of Zuccotti Park who was covered in blood.  “As he raised his camera to take a picture, two other police officers came running toward him, grabbed a metal barrier and forcefully lunged at him striking the photographer in the chest, knees and shin. As they did that they screamed that he was not permitted to be taking pictures on the sidewalk — the most traditionally recognized public forum aside from a park.” 

On the same day that Freeman wrote to the NYPD, the New York Civil Liberties Union (NYCLU) sent off their own letter to Mayor Michael Bloomberg and Police Commissioner Kelly.  The letter was signed by Donna Lieberman, Executive Director, Christopher Dunn, Associate Legal Director, and Arthur Eisenberg, Legal Director.  The letter described the violations of law by the men sworn to uphold the law as follows: 

“Beyond preventing journalists from documenting the actions of the police, numerous journalists  were arrested and subjected to physical force by NYPD officers during and after the eviction. We have heard numerous stories of NYPD officers liberally using force against both journalists and others. There seemed to be no supervisors in some of the areas, and officers gave the impression of ‘a blue-shirt free-far-all,’ in which they did not know what they were supposed to be doing and instead improvised aggressively. One photographer we spoke with was struck with a police baton on his arm and his camera lens, resulting in a bruise and in severe damage to the lens. Another reporter was struck in the shoulder with a baton immediately after telling the officer that she was a journalist. Several other journalists we spoke with were shoved by police, including onto the ground, despite having done all they could to comply with the officers’ instructions… 

“But the numerous reports we have received and have learned of make clear to us that the NYPD is aggressively blocking journalists from doing their constitutionally protected work and in some instances is even targeting journalists for mistreatment. That this has happened during this nationally important protest is all the more disturbing.” 

Targeting journalists?  Freeman at the New York Times sounded the same alarm in his letter, noting that “the credentialed press were targeted and subject to increased scrutiny and greater restrictions than members of the general public.” 

Would a billionaire mayor who owns a media empire actually allow the assault, battery, arrest and silencing of the media?  Under constitutional guarantees, a free press is to be allowed to not just observe the actions of government but also to obtain documents that might expose government corruption.  The NYPD is brazenly violating Freedom of Information Law (FOIL) requests, regardless of the stature of the media making those requests. 

On December 20, 2010, the New York Times Company petitioned a New York State court for injunctive relief against the FOIL practices of the NYPD, asserting that the NYPD was “denying access to public records, unreasonably delaying responses, failing to respond to appeals, and engaging in practices that violate the requirements of FOIL,” thereby impeding “the Times in its efforts to fulfill its constitutionally protected role in a democratic society.”  The Court ruled in the Times’ favor regarding document requests but failed to grant the requested injunctive relief.  The Times has appealed on that issue.  Because injunctive relief was not instituted, the NYPD has now gone from routinely stalling document requests from 90 days to as much as a year.  The New York State FOIL statute requires that documents that are readily available be turned over in 5 business days. 

On December 2, 2010, Milton Allimadi, Publisher of Blackstar News, filed a FOIL request with the NYPD seeking documents pertaining to NYPD actions related to the death of Sunny Sheu – an anti-corruption whistleblower who died under circumstances suggesting criminal complicity.  In a letter dated December 8, 2010, Sgt. James Russo responded that “It is anticipated that a determination will be reached on 3/8/2011.” On September 19, 2011, Mr. Allimadi filed an administrative appeal noting that the FOIL request had not been complied with in 10 months.  

In November 2011, MuckRock News filed a FOIL request with the NYPD seeking information on the “procedure for establishing and operating ‘frozen zones.’ ” A “frozen zone” was declared by the NYPD during their eviction raid on Occupy Wall Street protestors in Zuccotti Park, effectively banning City Council members and the press from being in the “frozen zone” to observe and report on the conduct of the police.  The FOIL was acknowledged by the NYPD in a letter dated December 5, 2011.  In a follow up letter dated January 4, 2012, Police Officer Rivera was assigned to the request.  The letter stated the following: “it is estimated that processing of your request will be completed by 4/9/2012.”  No response has been received in 9 months time. 

Further illustrating the practice and pattern of the NYPD’s unlawful processing of FOIL requests, on October 17, 2011, the New York Civil Liberties Union (NYCLU) brought a lawsuit in New York State court on behalf of Leonard Levitt, a long tenured police columnist for Newsday and now independent columnist and book author, against the NYPD and Police Commissioner Raymond Kelly.  

In October 2010, Levitt published a column revealing that since 2002 Commissioner Kelly had met with unknown persons at the Harvard Club in Manhattan with his food and liquor tab and that of his guests picked up by the New York City Police Foundation.  The Foundation is a nonprofit group whose major donors include the same Wall Street firms currently under criminal investigations for rigging Libor interest rates.  Wall Street donors to the Foundation who are also known to have a seat at the lower Manhattan joint spy operation include JPMorgan (with donations of more than $4.6 million); Goldman Sachs (over $100,000); Citigroup ($25,000 plus); New York Stock Exchange ($25,000 plus).  Those figures are just from 2010 through June 2011. 

In a subsequent February 2011 column, Levitt highlighted a New York Daily News article revealing that Commissioner Kelly had spent more than $15,000 at the Harvard Club in just the one year of 2008, the year he was considering running for mayor. 

In February 2011, Levitt submitted a FOIL request to the NYPD seeking records of the public schedule of Commissioner Kelly. (The Governor of New York State posts his public schedule on the internet and the President of the United States makes a substantial portion of his meeting schedule available.  Kelly apparently believes he is above all that.)  On May 5, 2011, the NYPD denied Levitt’s request, asserting that the request was “too broad, and fails to describe an NYPD record in a manner that can lead to its retrieval.” 

The New York Civil Liberties Union filed an administrative appeal of Levitt’s request with the NYPD, arguing that the original request was sufficiently clear in that it “plainly encompasses a paper or electronic calendar or log of the Commissioner’s schedule, records that undoubtedly exist and that could easily be retrieved.”  On June 21, 2011, the NYPD denied Levitt’s request.  The matter is now before a state court. 

In October 2011, I filed two FOIL requests with the NYPD seeking documents and emails related to the lower Manhattan spy center as well as for the Paid Detail, an NYPD program that rents uniformed and armed police officers to Wall Street firms and other corporations in Manhattan.  It is now more than 10 months later and I am still being stonewalled, receiving no documents at all.

The Protest and Assembly Rights Project is an initiative of multiple law school clinics across the country – including the Global Justice Clinic of Washington Square Legal Services and the Walter Leitner International Human Rights Clinic in New York City. The Project functions as a public interest watchdog, documenting and publicly reporting on the extent to which the government has met its international and constitutional law obligations to respect the right to assembly in its response to the Occupy movement. 

To prepare one of its major reports, The Project sought meetings with Police Commissioner Raymond Kelly, Chief Philip Banks (NYPD Community Affairs), and Commanders of the 1st, 5th, 6th, and 9th precincts. Multiple requests were made. The researchers received two written responses from the NYPD, both stating that it refused to meet. On August 22, 2012, the Project filed an administrative appeal with the NYPD over being stonewalled on its requests for documents under the Freedom of Information Law. 

The next Occupy Wall Street protest is scheduled for September 17, 2012 in lower Manhattan.  September 17 has been commemorating Constitution Day and Citizenship Day in America for more than half a century. Will the day be celebrated again in 2012 by assaulting the media and protesters seeking a critically needed realignment of their “democracy”? 

New York Times et al Letter to NYPD Protesting Treatment of Media

NYCLU Letter, Dated November 21, 2011, Regarding Arrest and Assault of Journalists

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