Monday, June 4, 2007


Chief Michael Collins

Commanding Officer Public Information Division

NYC Police Department

1 Police Plaza

New York, New York 10038

Dear Mr. Collins:

We are writing on behalf of Rafael Martinez-Alequin to request a hearing before the Commanding Officer of the Public Information Division to challenge the Police Department’s denial of Mr. Martinez’s application for a Working Press Card. The grounds for the hearing are 1) the denial was arbitrary and capricious and 2) the requirements for obtaining a Press Card are unconstitutional.

Mr. Martinez-Alequin is the publisher and editor of The New York City Free Press a publication that provides readers with diverse opinions on issues related to poverty, racial and ethnic issues. In his capacity as editor/publisher of this publication, Martinez-Alequin has applied for, and has been granted, a Working Press Card since the early 1990s. Last year when Martinez applied for a Working Press Card the NYPD issued him a Press Identification Card without an explanation. Although the application that he submitted this year was virtually identical to those which he submitted in the past, Mr. Martinez was denied a press card this year.

The denial of Mr. Martinez-Alequin’s application was arbitrary and capricious:

On May 22, 2007, Martinez-Alequin received a form letter from Lieutenant Whyte stating that his application for a Press Card had been denied. The letter offered three reasons which failed to justify the denial. As such, the denial is arbitrary and capricious. In addition, the proffered reasons are possibly a pretext for an unconstitutional censoring of Mr. Martinez-Alequin’s probing questions and subsequent provocative analyses.

The first reason offered for the denial is that the application “Failed to establish that applicant is a full-time employee of a news gathering organization covering spot or breaking news events on a regular basis.” While it is true that the application doesn’t establish that Martinez-Alequin is a full-time employee of the type of organization described above, that alone is not enough to deny him a Working press card. Title 38, Chapter 11 of the Rules & Regulations of the City of New York, allows for those other than full-time employees of news gathering organizations to also qualify for a Working Press Card. It reads, “Newspersons (such as freelancers), not otherwise eligible for a Working Press Card, who demonstrate a need to cover the above-described spot or breaking news events on a regular and routine basis will be eligible for a Working Press Card.” Thus the first stated reason can not actually stand as justification for the denial of the Working Press Card.

The second reason offered for the denial is that the application “Failed to establish a demonstrable need to cover spot or breaking news events on a regular and routine basis.” Since Mr. Martinez has never been employed by a news gathering organization covering spot or breaking news events, we can assume that the issuance of previous press cards was based on a finding that he fell into the category of a newsperson (such as freelancers). As someone not employed by a large media organization he had the onerous task of showing that he needed to have access to these news stories in addition to proving that he actually was producing news stories. The standard for determining need is not defined in the statute. But in Martinez-Alequin’s applications prior to 2006, the NYPD apparently found that he established a need for a Working Press Card. Since the focus of his publication, and the content of his applications have remained unchanged, it can be assumed that a denial based on a failure to demonstrate need on this one occasion is arbitrary and capricious.

The third reason stated focuses on the procedural requirements of the application process. Again, Mr. Martinez-Alequin submitted the same material he has submitted on previous occasions. The application included a letter written by Martinez-Alequin, on his own behalf as a self-employed newsperson, on Free Press stationary introducing three tear sheets of applicable articles as required by 38 RCNY § 11-01. Thus, Mr. Martinez-Alequin has met the procedural requirements and this reason cannot justify the denial of his application.

Mr. Martinez-Alequin firmly believes that the denial of his application, as not justified by the above reasons, is the direct consequence of the questions he has raised at press conferences. If this is so, the denial is not only arbitrary and capricious and the reasons pretextual, but the government has engaged in unconstitutional retaliatory actions in response to Martinez’s protected exercise of his First Amendment rights.

It is important to note that this year the NYPD failed to offer Mr. Martinez a Press Identification Card in the alternative of a Working Press Card. A Press Identification Card is an official ID but one that does not allow journalists to cross police lines in emergency situations. Since Martinez submitted an identical application to the one submitted last year it is difficult to understand why he was denied a Press Identification Card this year.

The requirements for Press Cards are unconstitutional.

The NYPD offers two types of press cards as described above. The system for allocating these cards is unconstitutional in that it allows for too much unfettered discretion on the part of the NYPD and permits police to deny cards to journalists with viewpoints that are controversial, unpopular, or particularly disagreeable to the NYPD. The First Amendment was established specifically to prevent such situations from occurring. Moreover, the lack of standards for issuing the cards runs afoul of protected Due Process rights.

In order to qualify for a Working Press Card, journalists must prove that they either work for an organization that covers “robbery scenes, fires, homicides, train wrecks, bombings, plane crashes, where there are established police or fire lines at the scene” or they must show that they are freelance reporters with a demonstrated need for access to breaking news. The card then allows for these journalists to cross police lines.

There is no established standard to determine whether a freelance newsperson has demonstrated a need to cross police lines in order to qualify for Working Press Card. As explained earlier, Martinez was granted a Working Press Card prior to 2006 after the NYPD presumably determined he demonstrated a need and then denied his virtually identical application in 2007 while the focus of his publication remained unaltered. There are numerous examples of the arbitrary issuance of Working Press Cards where reporters who need access to breaking events are denied in favor those who don’t. Such a discrepancy indicates that, in practice, there is no definable standard. The nonsensical allocation of these cards constitutes a viewpoint based restriction on free speech.

There is an additional danger in allowing the police to determine which reporters are entitled to witness their performance in emergency situations and which reporters should not be admitted. The public relies on the press to monitor the actions of its law enforcement agencies in order to ensure that those with the most power do not abuse their mandate.

The NYPD offers a different and inferior card, the Press Identification Card, to media organizations that do not cover ground-breaking news events. The Press Identification Card is limited to individuals who are employed by “legitimate” news organizations. Where the Working Press Card is issued to all who work for organizations with the means to cover emergency events without scrutiny over the organization’s legitimacy, those lacking the resources to cover such stories are forced to prove their legitimacy to the NYPD. The lack of standards as to what constitutes legitimacy again raises issues of its unconstitutionality for due process/vagueness reasons.

By granting Mr. Martinez a Press Identification Card last year the NYPD determined that his publication was legitimate. If The New York City Free Press was legitimate in 2006, and has remained unchanged, there are no grounds for denying his card this year and the failure to issue the Press Identification Card was arbitrary and capricious and unconstitutional.

The legitimacy of a news organization cannot be based on its revenue or its circulation. Nor should those producing commercially viable and favorable news be given credence over organizations that subsist without advertising revenue. By requiring those that do not work for large media organizations with the financial means to cover ground-breaking stories to establish their legitimacy, the NYPD is engaging in viewpoint based restrictions.

Where reporters and journalists are divided into classes of those who cover breaking news and those who do not and offered benefits based on this divide, the result is an unconstitutional form of viewpoint-based regulations that rewards the large and mainstream publications over the small independent entities.

Further, it seems the NYPD is basing its determination of legitimacy on the type of medium it chooses to deliver its message. By stating, for example, that those that work for online news sources are less legitimate than those that print or televise their stories, the government is engaging in unconstitutional content based restrictions. The fact that an article is published in the form of a blog as opposed to printed publication is not relevant with regard to the protection it is entitled by the First Amendment. Indeed both Congress and state courts have moved to ensure that the guarantees of a free press extended to journalists who publish on the internet. Sincerely,

Norman Siegel Steven J. Hyman Rachel Nicotra McLauglin & Stern,

LLP260 Madison AvenueNew York, NY 10016(212) 448-1100

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