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Why the news media may not want to share Capitol riot images with the police

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Director, Center for International Media Law and Policy Studies, Indiana University
Anthony Fargo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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The images from the Jan. 6 siege on the United States Capitol will likely be seared into the memories of many Americans.
Photographs and video published in print, online and on television showed protesters breaking windows to enter the building, sitting at a desk in House Speaker Nancy Pelosi’s office and confronting an outnumbered Capitol police force.
However, it may be the unpublished images that will be of most interest to law enforcement agencies as they track down and arrest as many of the rioters as possible for breaking a range of laws. The agencies may request or demand that news organizations turn over their unpublished material, which would force the media outlets to make uncomfortable choices.
Journalists argue that if they are forced to reveal confidential sources or turn over any news information they have gathered but not yet published, it will erode the trust of sources and the public, who will doubt the independence that journalists often claim.
Journalists serve the public, not the government. But is the public better served by bringing criminals to justice than protecting a journalistic principle?
Many of the people who participated in the attack on the Capitol building have been identified and arrested, some with help from photos published by the media and selfies and videos taken by the protesters.
As the search for more suspects continues, if authorities seek unpublished images from the news media and media outlets willingly cooperate, it could put journalists in greater danger when covering future protests. Protesters may see them as potential informants and physically attack them to avoid being identified later.
If the outlets resist and force authorities to issue subpoenas for the images, it is unlikely to improve the media’s standing with a distrustful public because it may appear the news organizations are obstructing justice.
Covering unrest is always dangerous for journalists, but the situation at the Capitol was especially so.
The protesters were supporters of President Donald Trump, who has often referred to the media as the “enemy of the people.” Someone carved the words “Murder the Media” into a door in the building, and news outlets lost thousands of dollars of equipment when it was stolen and smashed by protesters.
During protests after George Floyd was killed while being taken into police custody last summer, several reporters were injured and possibly targeted by protesters and police officers.
In Seattle, police subpoenaed the Seattle Times and several television stations in June 2020 to obtain unpublished images from protests there to identify people suspected of criminal activity. The news organizations challenged the subpoenas in court under Washington state’s shield law, which protects journalists from being forced to name confidential sources or turn over unpublished information to state authorities. The Reporters Committee for Freedom of the Press filed a brief supporting the news organizations’ position, in which it argued that enforcing the subpoena would jeopardize journalists’ safety as well as their editorial independence.
A judge ruled against them. Police later dropped the subpoenas because media appeals of the judge’s decision were likely to take too long to resolve.
Because the Capitol siege happened on federal government property, the incident is being investigated by federal authorities, meaning any court challenges to subpoenas would likely end up in federal court. This complicates matters.
Forty states have shield laws, but there is no federal shield law. In 1972, the U.S. Supreme Court ruled that journalists do not have a First Amendment right to refuse to reveal sources’ identities in response to a valid grand jury subpoena.
The Branzburg v. Hayes decision was so divided, however, that many lower federal courts have limited its reach to grand jury situations. This means that journalists have a better chance of winning if they are subpoenaed to provide evidence in civil lawsuits or at criminal trials.
The Jan. 6 incident does not involve confidential sources. Some federal courts have ruled that nonconfidential material gathered by journalists, including unpublished images, is also protected from disclosure, but the protection is usually less comprehensive than for confidential material.
Given the seriousness of the Capitol incident, which led to five deaths, it would be difficult for journalists to successfully argue that their interests are more important than those of law enforcement.
I have been studying the law regarding journalists and their sources for nearly 24 years. To my knowledge, U.S. journalists have rarely made the argument that they could face physical danger if they are forced to turn over information they have gathered. The closest parallel is a Washington Post reporter who successfully fought a subpoena from a war crimes tribunal 20 years ago because of fears of retribution in foreign conflict zones.
One possible solution would be for news outlets to publish all images that have not already been published on their websites. That way, both the public and law enforcement agents would have access without a bruising legal battle over making the images available only to the police. A bonus would be that the public would have even more information about what happened.
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I spoke to 99 big thinkers about what our ‘world after coronavirus’ might look like – this is what I learned

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Dean, Frederick S. Pardee School of Global Studies, Boston University
Adil Najam does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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Back in March, my colleagues at the Frederick S. Pardee Center for the Study of the Longer-Range Future at Boston University thought that it might be useful to begin thinking about “the day after coronavirus.” For a research center dedicated to longer-term thinking, it made sense to ask what our post-COVID-19 world might look like.
In the months that followed, I learned many things. Most importantly, I learned there is no “going back to normal.”
The project took on a life of its own. Over 190 days, we released 103 videos. Each was around five minutes long, with one simple question: How might COVID-19 impact our future? Watch the full video series here.
I interviewed leading thinkers on 101 distinct topics – from money to debt, supply chains to trade, work to robots, journalism to politics, water to food, climate change to human rights, e-commerce to cybersecurity, despair to mental health, gender to racism, fine arts to literature, and even hope and happiness.
My interviewees included the president of the U.S. National Academy of Sciences, a former CIA director, a former NATO supreme allied commander, a former prime minister of Italy and Britain’s astronomer royal.
I “Zoomed” – the word had become a verb almost overnight – with Kishore Mahbubani in Singapore, Yolanda Kakabadse in Quito, Judith Butler in Berkeley, California, Alice Ruhweza in Nairobi and Jeremy Corbyn in London. For our very last episode, former U.N. Secretary General Ban Ki-moon joined from Seoul.
For me, it was truly a season of learning. Among other things, it helped me understand why COVID-19 is not a storm that we can just wait out. Our pre-pandemic world was anything but normal, and our post-pandemic world will not be like going back to normal at all. Here are four reasons why.
Just as people with preexisting medical conditions are most susceptible to the virus, the global impact of the crisis will accelerate preexisting transitions. As Eurasia Group President Ian Bremmer highlights, a year of a global pandemic can pack in a decade or more of disruption as usual.
For example, Phil Baty from “Times Higher Education” warns that universities will change “profoundly [and] forever,” but mostly because the higher education sector was already screaming for change.
Pulitzer Prize-winning editor Ann Marie Lipinski arrives at the same prognosis for journalism, and Princeton economist Atif Mian worries similarly for structural global debt.
At Harvard, trade policy expert Dani Rodrik thinks the pandemic is hastening the “retreat from hyperglobalization” that was already in train before COVID-19. And Pardee School economist Perry Mehrling is convinced that “society will be transformed permanently … and returning to status quo ante is, I think, not possible.”
While the clouds over the global economy are ominous – with even the usually optimistic Nobel Prize-winning economist Sir Angus Deaton worrying we might be entering a dark phase that takes “20 to 30 years before we see progress” – it is political commentators who seem most perplexed.
Stanford University’s political theorist Francis Fukuyama confesses he has “never seen a period in which the degree of uncertainty as to what the world will look like politically is greater than it is today.”
COVID-19 has underscored fundamental questions about government competence, the rise of populist nationalism, sidelining of expertise, decline of multilateralism and even the idea of liberal democracy itself. None of our experts – not one – expects politics anywhere to become less turbulent than it was pre-pandemic.
Geopolitically, this manifests itself in what the founding dean of Harvard’s Kennedy School, Graham Allison, calls an “underlying, fundamental, structural, Thucydidean rivalry” in which a rapidly rising new power, China, threatens to displace the established power, the United States. COVID-19 accelerated and intensified this great power rivalry with ramifications across Asia, Europe, Africa, Latin America and the Middle East.
Not all turbulence, however, is unwelcome.
Across sectors, expert after expert told me that habits developed during the pandemic won’t go away – and not just the habits of Zoom and working from home.
Robin Murphy, engineering professor at Texas A&M University, is convinced that “we are going to have robots everywhere” as a result of COVID-19. That’s because they became so pervasive during the pandemic for deliveries, COVID-19 tests, automated services and even home use.
We hear from both Karen Antman, dean of Boston University’s School of Medicine, and Adil Haider, dean of medicine at Aga Khan University in Pakistan, that telemedicine is here to stay.
Vala Afshar, chief digital evangelist at Salesforce software company, goes even further. He argues that in the post-COVID-19 world “every business will be[come] a digital business” and will have to take a great deal of its commerce, interactions and workforce online.
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Science journalist Laurie Garrett, who has warned about global epidemics for decades, imagines an opportunity to address the injustices of our economic and societal systems. Because “there will not be a single activity that goes on as it once did,” she says, there is also the possibility of fundamental restructuring in the upheaval.
Environmentalist Bill McKibben says the pandemic could become a wake-up call that makes people realize that “crisis and disaster are real possibilities” but can be averted.
They are not alone in this thinking. Economist Thomas Piketty recognizes the dangers of rising nationalism and inequality, but hopes we learn “to invest more in the welfare state.” He says “COVID will reinforce the legitimacy for public investments in [health systems] and infrastructure.”
Former Environmental Minister of Ecuador Yolanda Kakabadse similarly believes that the world will recognize that “ecosystem health equals human health,” and focus new attention on the environment. And military historian Andrew Bacevich would like to see a conversation about “the definition of national security in the 21st century.”
Achim Steiner, administrator of the United Nations Development Programme, is awestruck at the extraordinary amount of money that was mobilized to respond to this global crisis. He wonders if the world might become less stingy about the much smaller amounts needed to combat climate change before it is irreversible and catastrophic.
Ultimately, I think Noam Chomsky, one of the most important public intellectuals of our times, summed it up best. “We need to ask ourselves what world will come out of this,” he said. “What is the world we want to live in?”
John Prandato, communications specialist at the Frederick S. Pardee Center for the Study of the Longer-Range Future, was series editor for the video project and contributed to this essay.
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The Confederate battle flag, which rioters flew inside the US Capitol, has long been a symbol of white insurrection

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Assistant Professor of Geography, Columbus State University
Jordan Brasher does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
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Confederate soldiers never reached the Capitol during the Civil War. But the Confederate battle flag was flown by rioters in the U.S. Capitol building for the first time ever on Jan. 6.
The flag’s prominence in the Capitol riot comes as no surprise to those who, like me, know its history: Since its debut during the Civil War, the Confederate battle flag has been flown regularly by white insurrectionists and reactionaries fighting against rising tides of newly won Black political power.
The infamous diagonal blue cross with white stars on a red background was never the Confederacy’s official symbol. The Confederacy’s original “stars and bars” design was too similar to the U.S. flag, which led to confusion on the battlefields, where troop positions were marked by flags.
The official flag went through a series of changes in attempts to distinguish Confederate from Union troops. The Confederacy would ultimately adopt the “Southern Cross” as its battle flag – cementing it as a symbol of white insurrection. While it is technically the battle flag, it has been used the most, and therefore has become known more generally as the Confederate flag.
Six decades before the Nazi swastika became an instantly recognizable symbol of white supremacists, the Confederate battle flag flew over the forces of the insurgent Confederate States of America – military troops organized in revolt against the idea that the federal government could outlaw slavery.
The founding documents of the Confederacy make its goals of white supremacy and preservation of slavery explicitly clear. In March 1861, Confederate Vice President Alexander Stephens declared of the Confederacy, “its foundations are laid, its corner-stone rests, upon the great truth that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition.”
The documents drafted by seceding states make this same point. Mississippi’s declaration, for instance, was very specific: “Our position is thoroughly identified with the institution of slavery – the greatest material interest of the world.”
After the Civil War, Confederate veterans groups used the flag at their meetings to commemorate fallen soldiers, but otherwise the flag mostly disappeared from public life.
After World War II, though, the flag surfaced as part of a backlash against racial integration.
Black soldiers who fought discrimination abroad experienced discrimination when they came home. Racist violence against Black veterans who had returned from battle prompted President Harry Truman to issue an executive order desegregating the military and banning discrimination in federal hiring. Truman also asked Congress to pass a federal ban on lynching, one of nearly 200 unsuccessful attempts to do so.
In 1948, the retaliation for Truman’s integration efforts came, and the Confederate battle flag resurfaced as a symbol of white supremacist public intimidation.
That year, U.S. Sen. Strom Thurmond, a South Carolina Democrat, ran for president as the leader of a new political party of segregationist Southern Democrats, nicknamed the “Dixiecrats.” At their rallies and riots, they opposed Truman’s integration under the banner of the Confederate battle flag.
Throughout the 1950s and 1960s, white Southerners flew the Confederate battle flag at riots – including violent ones – to oppose racial integration, especially in schools. For example, in 1962, white students at the University of Mississippi hoisted it at a riot defying James Meredith’s enrollment as the university’s first Black student.
It took the deployment of 30,000 U.S. troops, federal marshals and National Guardsmen to get Meredith to class after the violent race riot left two dead. Historian William Doyle called the riot – which featured the Confederate battle flag at its center – an “American insurrection.”
More recently, the Black Lives Matter era has seen an increase in violent incidents involving the Confederate battle flag. It has now featured prominently in at least three recent major violent events carried out by people on the far right.
In 2015, a white supremacist who had posed with the Confederate battle flag online killed nine Black parishioners during a prayer meeting at their church.
In 2017, neo-Nazis and other white supremacists carried the battle flag when they marched in Charlottesville, Virginia, seeking to prevent the removal of a statue of Confederate General Robert E. Lee. One white supremacist drove his car through a crowd of anti-racist counterprotestors, killing Heather Heyer.
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At the Jan. 6 Capitol riot, an image of an insurrectionist toting the Confederate battle flag inside the Capitol building arguably distills the siege’s dark historical context. In the background of the photo are the portraits of two Civil War-era U.S. senators – one an ardent proponent of slavery and the other an abolitionist once beaten unconscious for his views on the Senate floor.
The flag has always represented white resistance to increasing Black power. It may be a coincidence of exact timing, but certainly not of context, that the riot happened the day after Rev. Raphael Warnock and Jon Ossoff won U.S. Senate seats representing Georgia. Respectively, they are the first Black and first Jewish senators from the former Confederate state. Warnock will be only the second Black senator from below the Mason-Dixon Line since Reconstruction.
Their historic victories – and President-elect Joe Biden’s – in Georgia happened through large-scale organizing and turnout of people of color, especially Black people. Since 2014, nearly 2 million voters have been added to the rolls in Georgia, signaling a new bloc of Black voting power.
It should come as no surprise, then, that today’s white insurrectionists opposed to the shifting tides of power identify with the Confederate battle flag.
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