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August 04, 2021 Feature

A Racial Reckoning, Reporter Arrests, and Court Access: The Inside Story of a Minneapolis Media Lawyer

By Leita Walker

I first appeared in court in the Minnesota prosecution of former police officer Derek Chauvin in July 2020 to challenge a gag order entered by Hennepin County District Judge Peter Cahill. Read literally, the order threatened to chill the speech of not just trial participants but also anyone who received a salary from the state. Our brief mentioned a couple of state legislators as examples of people who might believe they were subject to the gag. Unbeknownst to us, the legislators we named were from Judge Cahill’s district.

In open court, the judge called me to the podium and, because we referenced his legislators, angrily accused me of doxing him. I was momentarily speechless. Then I realized that his colleague Judge Esther Salas’s son—gunned down by an assailant who had once appeared before her—had died just two days prior. Understandably, Judge Cahill perhaps was a bit on edge as he began proceedings over the killing of George Floyd, whose tragic death gave rise to not only one of the biggest social justice movements in U.S. history but also plenty of vitriolic speech and deranged conspiracy theories.

I managed to convince Judge Cahill that our choice of legislators was a complete coincidence (and that he should vacate the gag order). But looking back, that day set the tone for how I would deal with the court and all government officials over the long year to come. That was the day I realized: There’s a lot going on here, and the media would be well served by an attorney who proceeds with some nuance and empathy.

By the time the Chauvin trial rolled around in March 2021, the insurrection at the Capitol had occurred, national nerves were fried, and the city block surrounding our courthouse looked like Guantanamo Bay. As trial ended in April with Chauvin’s conviction for second-degree murder, the one-time California home of a trial witness was vandalized. Three women were arrested for splashing pig blood on the house and leaving a pig’s head near the front porch.

Meanwhile, the demonstrations continued, including in the front yard of the Hennepin County Attorney, who sold his home of 13 years to escape. They reached a fever pitch again in the final days of Chauvin’s trial when an on-duty officer named Kimberly Potter killed a 20-year-old Black man named Daunte Wright in a Minneapolis suburb. The crowds included armed demonstrators claiming to be journalists and journalists with an activist edge working for publications named things like Unicorn Riot. That of course doesn’t excuse the brutal treatment some members of the media received. But it does contextualize the difficult situation police faced.

For a Minneapolis-based First Amendment lawyer, the past year has been an odd mix of shock, outrage, and sadness on the one hand and adrenaline, excitement, and pride on the other. It’s hard to see the city you love burn and realize how imperfect it is and how hateful it can be to people who don’t look like you. But it’s been gratifying—and, thankfully, distracting—to have meaningful work to do and to make some good law and educate some key decision makers along the way. Ultimately, the year has been one of soul searching.

When I was born a baby First Amendment lawyer, I was born an absolutist and a purist. A mug on my desk from the Library of Congress (purchased on my first trip to Washington, DC, as a high school graduate) quotes all those famous lines that have inspired and justified my career path. You know the ones: “The pen is mightier and the sword,” and so on.

But I think the past year—or maybe the past several years—has caused many of us to question some of these lines a bit. In a “free and open encounter” that includes conspiracy theories and social media, does truth always rise to the top? Is more speech always better, or is it just as important to the overall democratic system of free expression that unhinged, extremist speakers occasionally lose a defamation case? Are we really against the “right to be forgotten,” or is the Boston Globe’s Fresh Start Initiative an important step in recognizing the role the media may have played in delivering the country to the nine minutes that played out so tragically on May 25, 2020, in what’s now known as George Floyd Square?

I don’t know the answers to these questions. But living in Minneapolis, representing the media, I do know this: It’s not just about us. And while I won’t go so far as to say the soaring rhetoric on my favorite mug is as naïve as the 18-year-old girl who bought it, I will say that absolutism and purism feel a little . . . last century.

Take jury names, for example. Judge Cahill has said he won’t release them until October 2021; meanwhile, I’ve made clear to the court that it can expect a motion to unseal sooner than that. But obviously the court won’t dismiss concerns over pigs’ heads being delivered to front porches—and we shouldn’t ignore them either. We have to be prepared to help the court understand why the public’s interest in the historically important Chauvin case—and the racial justice and healing that story will help to further—outweighs the potential for additional trauma to jurors who had to watch a man die, over and over and over.

A much easier decision to make was the media’s choice to collaborate with the court over trial coverage. This resulted in a real triumph of transparency: The world was able to watch the trial live and remote, gavel to gavel. But the collaboration—most of which happened with Chief Judge Toddrick Barnette, off the record—was not without its challenges. It began with extremely limited in-person access, which the media grudgingly accepted for the chance to livestream the trial. And throughout trial, the dynamic between the media and the court often felt like a negotiation rather than a full-throated assertion of First Amendment rights. “Let’s not lose sight of the big picture” was a phrase tossed about more than once among coalition members. In other words: Judge Cahill has given us historic camera access, let’s not risk annoying him with something of lesser moment, like the initial restrictions on talking in the hallways (the court later relented and lifted the ban). Thus, we often floated concerns informally, hoping they would find their way to Judge Cahill and the situation would be rectified without a public fight. They usually did, and it usually was.

More than once I thought my job would have been easier had the court simply opposed us at every turn. It’s much more straightforward to march into court with nothing to lose and pound the table about the First Amendment than it is to find a middle ground with a sometimes-accommodating court and a coalition whose members have diverse views and agendas. At times I wondered if we were pulling punches we should have thrown. But, for the most part, I don’t think the coverage suffered, the written orders are uniformly good, and the coalition’s willingness to work with the court means Hennepin County now has two judges—Cahill and Barnette—who better understand and respect the media’s objectives. That’s worth something given the upcoming trials of Potter’s and Chauvin’s co-defendants scheduled for this winter and next spring. It also means we have a shining example of camera coverage done right to cite to supreme courts in Minnesota and elsewhere.

What still remains frustrating are our efforts to work with law enforcement to ensure the media’s rights are respected at demonstrations—frustrating because leadership seems to listen and say the right things and then, in the heat of the moment, the officers on the ground engage in inexcusable misconduct. This is the area where I’ve thought litigation is perhaps most needed to snap heads to attention and to obtain, as the Minnesota ACLU did, judicial decisions that force Minnesota law enforcement to come to grips with the law. But the optics of journalists suing over pepper spray and rubber bullets—when people of color are literally being killed—are tricky. I’ve been gratified to see the lawsuits paired with a willingness by the media to listen to law enforcement about the challenges of policing these situations. I’m hopeful that, because of the media’s patience and engagement, we have started down a road toward educating the lowest-level officers about the role and the rights of the media. Already, the State of Minnesota is talking about joint trainings between law enforcement and the media and providing the media with “Field PIO” who can answer questions and alert the media to developments at demonstrations in real time.

The beat goes on in Minnesota. Potter is set to be tried for second-degree manslaughter in December 2021, and in March 2022 former officers Thomas Lane, Alexander Kueng, and Tou Thao will be tried for aiding and abetting Chauvin. We’ll find out soon just how much we’ve all learned from one another.

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By Leita Walker

Leita Walker is a partner in Ballard Spahr LLP’s Minneapolis office, where she practices media law. Over the past year, she represented a coalition of news organizations, industry associations, and open-government advocates to ensure access to the criminal proceedings against Derek Chauvin and his co-defendants and to ensure the safety of journalists covering related demonstrations.