Law doesn't do enough to protect reporters

Candidate charged with assaulting reporter
Candidate charged with assaulting reporter

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Story highlights

  • Greg Gianforte has been charged with misdemeanor assault against Guardian reporter Ben Jacobs
  • Danny Cevallos: This incident highlights why journalists should be given special protection under the law

Danny Cevallos (@CevallosLaw) is a CNN Legal Analyst and an attorney practicing in the areas of personal injury, wrongful conviction, and criminal defense in New York, Pennsylvania, and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Among the boatload of federal criminal laws that Congress has enacted, there's a growing category of laws that enhance punishment for crimes against certain groups of people based upon their status or employment. And given the news out of Montana, it seems like it may be time for Congress to add a new group -- members of the press.

A Republican candidate in Montana's special congressional election has been charged with misdemeanor assault after he had a physical altercation with a reporter on Wednesday night at his campaign headquarters in Bozeman. Ben Jacobs, a political reporter for the Guardian, apparently asked Greg Gianforte about the Congressional Budget Office score for the House Republican health care plan. Jacobs tweeted that the candidate then "body slammed" him and "broke [his] glasses." Gianforte denies Jacobs' version of the story.
Danny Cevallos
Consider: There are a number of overlapping federal laws criminalizing assault on any member of the three branches of government -- judicial, executive or legislative -- while carrying out their duties. Under 18 U.S.C. § 111, for example, just making physical contact with a federal official carries a potential eight-year maximum sentence. If there's any bodily injury at all, the maximum penalty jumps to 20 years.
    Compare that to Montana's maximum sentence for misdemeanor assault causing bodily injury on a regular citizen: just six months. Like federal law, the states elevate simple assaults based on the status of the person assaulted. A simple assault committed against a police officer in the performance of his or her duties automatically becomes an aggravated assault in some jurisdictions. And an assault is punished more severely in some states against a person over 65 years of age.
    So if we're going to protect policemen and members of Congress, why not members of the press who are assaulted by... candidates for Congress?
    While not officially a government branch, journalists are recognized by the Constitution as being fundamental to American democracy. The First Amendment explicitly extends special protection to journalists: "Congress shall make no law ... abridging the freedom ... of the press..."
    The framers' purpose in extending that protection was, as Justice Potter Stewart put it: "to create a fourth institution outside the Government as an additional check on the three official branches ...The relevant metaphor, I think, is the metaphor of the Fourth Estate."
    Yet, assaults on members of the press are treated like any other assault, despite clear video evidence of them being assaulted and even killed live on-air.
    The Justice Department and the Federal Bureau of Investigation prosecute hate crimes committed against people based on biases of actual or perceived sexual orientation, gender identity and disability. Why? Because bias crimes like these are considered so pervasive that the federal government has asserted jurisdiction over them.
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    On the whole, bias crimes create a lot of problems for the criminal justice system. They force an already overworked prosecution to prove not just that an assailant punched a victim but, additionally, that the crime was motivated by hatred of a characteristic or committed because the victim was performing his or her official functions.
    Nonetheless, these criminal laws are here to stay. And as long as they are, why not protect one more group -- a group we know is assaulted for performing its duties and for its perceived characteristics?