A Failure to Communicate

How confusion and chaos led to a reporter's arrest -- and a First Amendment court test.

Under cross-examination by Richardson, Dunfee continued to insist that he had spelled out the specifics of the closure area to Hansen in understandable terms. But he acknowledged that no provisions had been made for reporters who were on site when the raid occurred, as differentiated from those who showed up later, and conceded that during the conversations with Hansen captured on video, he can be seen making only one gesture: pointing down the mountain.

"Did you tell anybody from the press during the fifteen-minute time that they could only go to the Vista Bahn and they could only cover the story from the Vista Bahn?" Wallace asked him.

Dunfee replied, "That was not my intention..."

Colorado Daily reporter Brian Hansen has made his own headlines.
Susan Goldstein
Colorado Daily reporter Brian Hansen has made his own headlines.
Just before he was arrested, Brian Hansen (kneeling at left) takes notes while Forst Service officer Chuck Dunfee speaks to protesters.
Just before he was arrested, Brian Hansen (kneeling at left) takes notes while Forst Service officer Chuck Dunfee speaks to protesters.

During his own testimony, Hansen said that he appreciated the need for a closure area to maintain the safety of all parties involved and that he in no way wanted to prevent officers from doing their duty. Further, he emphasized that had he known how near the boundary was to the blockade, he would have been happy to comply.

But Wallace seemed more interested in establishing whether or not Hansen and the Daily were biased against the Forest Service, Vail Associates and the Category III expansion. In questions directed to Hansen and editor White, who was also called to testify, he repeatedly touched on alleged favoritism, pointing out, for example, that one Hansen article featured the address of a Web site put up by opponents of the expansion (stopvail.net) but not that of Vail Associates (vail.com). He also drew attention to what he referred to as the Daily's motto: "Find the bastards and nail them to the wall."

In reply, Hansen avoided taking sides in the Vail scrap -- an approach he continues to take. "This wasn't advocacy journalism," he says. "I was just reporting what I'd learned. I don't make this stuff up."

Nonetheless, Wallace returned to this theme during his closing remarks, on day two of the hearing. "We have talked about bias here," he said, "and I think this defendant went up there with a liberal bias, an environmental bias -- whatever you want to call it, an anti-Forest Service bias -- expecting the worst, looking for it. And I think he made up his mind: 'I'm not leaving this area. I'm not even going down that road'...I think he decided, 'You can't arrest me. I'm a member of the press.'"

Richardson objected to Wallace's bias remarks in the hearing, because he saw them as an attempt to place limits on the press. "Under First Amendment law, it doesn't matter if a reporter is from the most outrageous left-wing pamphlet. As long as they're acting as a journalist, they still have First Amendment rights. You don't have to be a reporter from the Denver Post or the Rocky Mountain News to be covered; my feeling is that you could be there from Earth First magazine and still be cloaked with that protection. The Constitution doesn't say you won't be protected if you espouse a point of view in your writings."

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a nonprofit journalism-rights organization in Arlington, Virginia, echoes these sentiments. "This country was largely shaped by journalists like Ben Franklin, who had opinions about the things they wrote about. So I find it offensive that you could trump up a charge against someone because what they write about or their interpretation of the news is sympathetic to one side or the other."

In Dalglish's opinion, arrests of journalists have become more common of late. She notes that numerous reporters and photographers were caught up in police sweeps during protests of the World Trade Organization gathering in Seattle (which Hansen also covered), including Kery Murakami, a reporter for the Seattle Post-Intelligencer who wrote about being jailed for refusing to leave an area designated as a no-protest zone. (Murakami says he behaved as he did because "one, I had a job to do, and two, under city law, reporters and independent observers are exempt from the dispersal law.") The charges against Murakami were later dropped, but freelance photographer Larry Erickson wasn't so lucky; he was convicted for refusing to leave a crime scene in Redlands, California, and is presently serving a six-month sentence for it.

With massive protests expected at the Republican and Democratic conventions later this summer, Dalglish expects that even more journalists will be arrested -- and she fears that Hansen's case doesn't bode well for the future. "It has the potential to set precedents, since it's in federal court. I worry about things like this being reported in case law, and if he were to lose in court and appeal it to a court that wrote nasty things about the need to control the media, it could cause a lot of problems. I think that's a ways down the road, but I could envision a scenario where it might happen. So we've just got to hope that the judge would understand how the First Amendment works."

A comment made by Magistrate Robb during the May hearings -- he quoted Thomas Jefferson as saying that if he had to choose between a government without newspapers or a newspaper without government, he'd pick the latter -- gives Hansen reason for at least some optimism. But Robb has announced that he's going to retire in January. If Hansen's case isn't dismissed before then, there's every chance a new judge will up wind overseeing it. And no one knows what Robb's successor will think of Jefferson.

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