In an egregious violation of press freedoms and First Amendment-protected activity, a New York City video journalist was arrested on felony hate crime charges Tuesday for allegedly being present during and documenting a pro-Palestine protest action.
According to the charges, Sam Seligson, a credentialed independent videographer, filmed a small group of people last June graffitiing the homes of the Brooklyn Museum’s director, president, and two other museum officials with pro-Palestine, anti-Zionist slogans.
No one is suggesting that graffitiing private property is legal under New York law. Seligson is not accused of spray-painting or vandalizing any property. He is nonetheless facing charges for criminal mischief enhanced as a felony hate crime; one other person alleged to have driven participants to and from the executives’ homes is also facing criminal mischief hate crime charges. The police are still looking for four alleged participants.
That a participant in the graffiti action would face criminal mischief charges comes as no surprise. To categorize the acts as a felony hate crime is, however, itself a troubling overreach.
The home of Brooklyn Museum director, Anne Pasternak, was not targeted because she is Jewish but because of the museum leadership’s treatment of Gaza solidarity protesters. The other homes targeted did not belong to Jewish people.
Even those who might disagree with the nature of the tactics cannot reasonably claim that the action was targeting individuals for being Jewish. The targets were the homes of individuals in leadership roles in an institution that has been a site of antiwar protest.
To suggest the Brooklyn Museum’s ties to Israel and its military–industrial complex somehow confer Jewish identity on the institution’s executives is a particularly offensive version of the common, pernicious conflation of anti-Zionism with antisemitism.
The reasons behind it, however, are clear. The hate crime charge is among countless repressive efforts to treat Palestinian solidarity as de facto antisemitic, and thus turn it into de jure antisemitism.
The hate crime enhancement is bad enough. Applying the overreaching hate crime charges to a journalist covering the incident is beyond troubling; it is an outrage. It is not alleged that he participated in the graffiti. He is accused of merely traveling with the participants and being present to document their activities.
“If he is being charged for being transported by these people to document the event, that’s not a crime, that’s journalism” said Robert Balin, an attorney who has represented photojournalists arrested by the NYPD during the George Floyd uprisings. Balin stressed that it’s possible that more relevant information could emerge to complicate the story, “but if the facts are as they are being portrayed, which is that he did not actually participate in the underlying events, bringing felony charges against him is very, very concerning.”
At this point, the prosecution has not even proven that Seligson was present, and Seligson and his attorney did not comment on whether he was. But he would hardly be the first video journalist to accompany people engaged in unlawful political or other activities — including graffitiing private property — for documentary purposes.
A law enforcement official who spoke anonymously to The Associated Press conceded that Seligson was “not directly involved in the spray-painting or property damage.” So there can be little doubt he is being charged just for documenting the act.
According to Seligson’s attorney, Leena Widdi, the criminal complaint against the journalist “does not allege any specific behavior that is attributed to him outside of presence, which is absolutely consistent with his role as a journalist in documenting protests or other activities.”
“The state has not provided any reliable evidence that he was actually there,” Widdi told me. “And even if he were there, they have not made any allegations that he engaged in any activity beyond mere presence.”
There is no law that requires journalists — or any members of the public — to act as police informers should they observe an crime.
On the contrary, there is a particular public interest in ensuring that members of the press can respond to tips and cover stories without fear that they will in turn face prosecution for their continued presence. Indeed, the right to observe and record unlawful conduct without being considered complicit should not only be reserved for journalists.
“This is VERY alarming,” wrote the advocacy group Freedom of the Press Foundation, on X. “Cops and prosecutors have dreamed up plenty of convoluted theories to criminalize journalism.” The organization added that “charging a reporter with a hate crime for documenting news has to be one of the most outrageous yet.”
Seligson’s charges risk a chilling effect on journalistic activity, when even the observation of an unlawful incident by a member of the media exposes that journalist to claims of criminal culpability. Seligson should not be facing charges at all, let alone serious hate crimes charges for covering an action that itself should not be deemed a hate crime.
“This appears to be a clear attempt to stifle both journalistic activities and pro-Palestine speech,” said Widdi, Seligson’s attorney. “The charges necessitate the belief that any support of Israel is necessarily synonymous with Jewishness, which is palpably untrue and extremely dangerous.”
“I don’t think any of the allegations are sufficient to make out a hate crime,” said attorney Moira Meltzer-Cohen, who is representing a person charged with driving the participants. Her client also faces several counts of criminal mischief as felony hate crimes.
Meltzer-Cohen said that she could not speak directly to Seligson’s case, but, as a general point, expressed serious concerns about the possible precedents set if journalists are threatened with prosecution for documenting unlawful activity.
“We have an expectation in this society that you can document unlawful conduct, particularly unlawful political conduct and unlawful aesthetic conduct,” Meltzer-Cohen told me. “I don’t think anyone could have anticipated that this was going to be charged as a hate crime. And I don’t think anyone could have anticipated that someone in a documentary role was going to be roped into these charges.”
The Manhattan District Attorney’s Office said that those facing hate crime charges are accused of “vandalizing these homes and using an inverted red triangle.” That is, using a popular symbol of Palestinian resistance and Arab unity, which is a feature on the Palestinian flag, and a widely recognized symbol of global Palestinian solidarity, almost as common as a watermelon on protest banners. The fact that Hamas’s military wing has also used the symbol in videos to identify Israeli military targets in Gaza — during a genocidal war — since October 7 does not make the symbol an antisemitic one. It is, however, on these spurious grounds that the hate crime charges are based.
“Nobody here was targeted as a result of their membership in a protected class,” Meltzer-Cohen told the New York Times.
Police are still reportedly searching for four other participants in the action.
Under the First Amendment, Fifth Amendment, and the New York Shield Law, which protects reporters from being forced to reveal confidential sources or materials, professional journalists have no legal obligation to share any information with police or prosecutors about the participants in the events they may cover, even those involving unlawful conduct.
If Seligson’s arrest and perversely overreaching charges are an effort to compel a journalist to share information, the police and prosecutors have already set a pernicious, coercive precedent, whether or not the charges stick.
The article was originally published on The Intercept.