An August 30 a report in the boston.com blog “On Liberty” elaborated on the First Circuit Court of Appeal’s decision in a case regarding a citizen’s right to observe, record and distribute videos of police in a public space carrying out their duties. We’ll get to the actual decision later.
A report by the Louisiana ACLU documented fifteen incidents in which people claimed NOPD officers interfered with their First Amendment right to observe, photograph, and/or film police activity in public. The report describes “consistent hostile responses of NOPD officers when people decided to observe, film, and photograph” them. At issue is the very arguable points of whether the citizens actually interfered with necessary police activity, creating an atmosphere of distraction or danger for the police versus whether the police deliberately acted in disregard of basic rights.
The right of citizens to observe, let alone record or report on police activity has come under attack in recent months, and many have found the implications chilling. Although members of the public have a right to observe the police, they cannot interfere with police duties. Police work is inherently dangerous, but arrests for “interference” must be based on evidence that the bystander intended to interfere with the police officer’s duties.
Exercising the constitutional right to observe, photograph, or record police activity in public is not, on its own, “interference.” While officers may be unhappy that they are being recorded when they are performing an arrest or conducting other police activity, their discomfort does not make a lawful exercise of a First Amendment right a crime.
Outlined in the report are 15 incidents of both private citizens and journalists who were stopped, threatened, manhandled, and/or arrested for recording police activity with cameras, videocams, cell phones or handwritten notes. Some of these events were even observed and recorded by other citizens, who then released their recordings publicly. Some people are told they are “interfering with a police investigation.” More often, they were told nothing.
Yet another incident involved a man on a bicycle observing police using force on a homeless man. He stopped to watch from a safe distance. When ordered to leave, he “asked the police officer if he could watch from the other side of the street. At this point, one of the police officers crossed the street and arrested Mr. Swanson and charged him with crossing a police cordon. In fact, several of the people in these reports had been accused of crossing police cordons, but in none of the cases had a cordon been delineated.
In its discussion of the New Orleans incidents, the report made clear that “despite the media coverage of the stories contained in this report, and the filing of Public Integrity Bureau complaints by some of the people profiled in this report, it seems that the NOPD has not disciplined a single officer for a First Amendment violation. It also made recommendations for training officers in First Amendment rights.
At another incident, in New York, three men with a video camera were walking toward a scene where, they had been told police were beating a man. When told to leave they told officers “they had a legal right to observe the activities and that they were not interfering with the arrest, only witnessing it. At that point, the officer placed the three under arrest, charging them with assault and obstruction of governmental administration. At no point had the three touched or provoked the officer — they had simply stated their rights to observe police actions.
In all of the aforementioned cases, there is a common theme of perceived and real intimidation. In some there are verbal threats by police. In some, recording devices are taken, damaged, or erased. In many cases, if charges were filed, they were later rescinded or dismissed in court.
What rights do the citizen observers have in these situations? In the Boston case described previously, attorneys for the city argued that police should have been immune from a civil rights lawsuits in this case because, they asserted, the law is unclear as to whether there is a “constitutionally protected right to videotape police carrying out their duties in public”. Making the law crystal clear, the Court responded: “Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
The Court also made clear that the police must be aware of citizen civil rights in these circumstances. The Court further stated that such protections should have been clear to the police all along, noting that the right to videotape police carrying out their duties in a public forum is “fundamental and virtually self-evident”, particularly on the Boston Common–the “apotheosis of a public forum.”
The Court also stated clearly that the right to videotape public officials isn’t limited to the press. Rather, the Court noted, “the public’s right of access to information is coextensive with that of the press.”
The Court’s final words are worth repeating in some detail:
Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” the Court continued. “The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
The Court also acknowledged the need for balance between holding public officials “accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” The court concluded:
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment right. Though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.
At a time when civil rights appear to be under attack, when claims of national security and such infringements as found in the Patriot Act, are used to excuse such an abomination of our rights, this decision is a breath of fresh air.
Reversing the Citizens United ruling would be an even bigger breath of fresh air.
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