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Capitol riot suspects use journalism as defense

by The Associated Press | April 19, 2021 at 2:00 a.m.
FILE - In this Jan. 6, 2021, file photo, Trump supporters gather outside the Capitol in Washington. Some people charged with storming the U.S. Capitol on Jan. 6 are claiming they were only there to record history as journalists, not join a deadly insurrection. Experts say it's unlikely that they can mount a viable defense on First Amendment free speech grounds, but some appear intent on trying. (AP Photo/John Minchillo, File)

The Trump supporters who stormed the U.S. Capitol in January created a trove of self-incriminating evidence, thoroughly documenting their actions and words in videos and social media posts. Now, some of the camera-toting people in the crowd are claiming they were only there to record history as journalists, not to join a deadly insurrection.

It's unlikely that any of the self-proclaimed journalists can mount a viable defense on the First Amendment's free speech grounds, experts say. They face long odds if video captured them acting more like rioters than impartial observers. But as the internet has broadened and blurred the definition of a journalist, some appear intent on trying.

At least eight defendants charged in the Jan. 6 riot have identified themselves as journalists or documentary filmmakers, including three people arrested this month, according to an Associated Press review of court records in nearly 400 federal cases.

One defendant, Shawn Witzemann, told authorities he was inside the Capitol during the riot as part of his work in livestreaming video at protests and has since argued that he was there as a journalist. That explanation did not sway the FBI. The plumber from Farmington, N. M., is charged with joining in demonstrating in the Capitol while Congress was certifying Joe Biden's electoral victory over Donald Trump.

"I seek truth. I speak to sources. I document. I provide commentary. It's everything that a journalist is," Witzemann told a New Mexico television station after his arrest April 6. He did not respond to a social media message and email from The Associated Press.

Witzemann's nightly news show is titled the "Armenian Council for Truth in Journalism" -- satirically, his attorney says. On its YouTube page, which has just over 300 subscribers, the show says it "delivers irreverent and thought provoking commentary and analysis, on an eclectic range of subjects."

Another defendant works for Infowars, the right-wing website operated by conspiracy theorist Alex Jones. Others have fringe platforms named "Political Trance Tribune," "Insurgence USA," "Thunderdome TV" and "Murder the Media News."

But while the internet has given more people a platform to use their voice, the definition of a "journalist" is not that broad when put into practice in court, said Lucy Dalglish, dean of the University of Maryland's Philip Merrill College of Journalism, who used to practice media law as an attorney.

She said it is an easy case to make that Capitol riot defendants were not journalists because reporters and photographers must have credentials to work there. She said any defendant captured on video encouraging rioters cannot credibly claim to be a journalist.

"You are, at that point, an activist with a cellphone, and there were a lot of activists with copyrighted videos who sold them to news organizations," Dalglish said. "That doesn't make them journalists."

Even credentialed reporters and news photographers are not immune from prosecution if they break a law on the job, said Jane Kirtley, who teaches media ethics and law at the University of Minnesota.

Samuel Montoya, an Infowars video editor, was arrested Tuesday in Texas on charges including impeding passage through the Capitol grounds. Montoya spoke on an Infowars show about witnessing a police officer shoot and kill a woman inside the Capitol.

Montoya also recorded and narrated a video while walking through the building, occasionally referring to himself as a journalist while wearing a red "Make America Great Again" cap.

Montoya told a judge on Wednesday that he works for Infowars and mentioned that Jones also was in Washington on Jan. 6. Jones has not been charged in the riot, but Montoya asked if returning to work or contacting his boss could violate his pretrial release conditions.

"I certainly understand what you're asking because this was also a news event and you work in the news or information business, but this is a line that you're going to have to be careful of on your own," U.S. District Judge Susan Hightower said.

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