A New First Amendment Right: Videotaping the Police
The most powerful weapon against police misconduct — taping cops with cell-phone cameras — is getting support from the courts
May 21, 2012
Scott Olson
/ Getty
Images
A police
officer and
protesters
videotape
each other
during a
demonstration
in Chicago
on May 18,
2012
When protesters gather in Chicago this week to express their views about the NATO summit, people will be able to videotape the police and post videos of any police misconduct. Recording the police used to be illegal in Illinois. But this month, a federal appeals court ruled that a state wiretap law prohibiting it conflicts with the First Amendment.
A legal battle has been raging over whether people have the right to make video recordings of the police in public places. The video takers and their supporters insist that recording the police is citizen journalism protected by the First Amendment. But police across the country have insisted it is not — and have been arresting the video makers. The legal tide now appears to be turning decisively in favor of the right to take video of the police. This month, the video takers scored two big new wins — the ruling in Chicago and an important statement from the U.S. Department of Justice in a Baltimore case.
It is hard to believe, in this YouTube age, that taking video of people in public could be a crime. But the police are serious about not wanting to be recorded — and they have been making arrests to prove it. In 2010, Maryland resident Anthony Graber was charged with violating wiretap laws and threatened with as much as 16 years in prison for videotaping his own traffic stop. This month, twin teenagers in Mississippi said they were arrested and taken to jail for recording the police investigating a shooting at their apartment complex.
Eager as the police have been to declare this kind of recording criminal, the courts have been more skeptical. When Graber was prosecuted for making his video of the state trooper who pulled him over, the judge threw out the charges. Last summer, the Boston-based U.S. Court of Appeals for the First Circuit ruled that the police violated the First Amendment rights of Simon Glik, who was arrested for making a cell-phone video of police forcefully arresting a suspect on the Boston Commons. In March, Boston agreed to pay Glik $170,000 in damages and legal fees for infringing on his right to record the police.
This month’s new legal victories strongly bolster this emerging legal right. In the Chicago case, the Seventh Circuit Court of Appeals blocked the state from using a wiretap law — which prohibits audio recording of anyone without their permission — to arrest people who take video of the police in public. Using wiretap laws in this way, the court said, “restricts far more speech than necessary to protect legitimate privacy interests.”
Last week, the Department of Justice made its views on the issue known in a Baltimore civil lawsuit. A man named Christopher Sharp is suing the Baltimore police for destroying the video archive on his smart phone after he recorded officers arresting his friend. In a letter to the police department, the Department of Justice stated that the right of people to take videos of the police in public places is “firmly rooted in long-standing First Amendment principles.”
The main
reason the
battle over
recording
the police
is so
important —
and so
highly
contested —
is that
videos like
these get
results.
That was
clear last
November,
when a video
of a campus
officer at
the University
of
California
at
Davis casually
pepper-spraying
student
protesters
went viral,
and the
university
was
pressured to
suspend the
chief of
police — who
later
resigned —
and two
officers. In
another
high-profile
case, a New
York City
police
officer who
was captured
on video
shoving a
bicyclist to
the ground
left the
force and
was later
convicted of
filing a
false report
about the
incident.
The march of
technology
is the story
of
unintended
consequences.
Create a
system to
link the
Defense
Department’s
research
computers —
the origins
of the
Internet —
and you end
up with
Google and
Facebook.
When video
capability
was added to
smart
phones, and
when YouTube
was created,
it is
unlikely
anyone was
thinking of
what it
would mean
for
policing.
But the
impact is
enormous. No
police
officer
wants to be
removed from
the force
because of a
viral video.
Technology,
however,
cannot do
this alone.
For video to
keep the
police
honest, the
law must
protect the
people who
do the
recording.
When Simon
Glik was
arrested in
Boston and
Anthony
Graber faced
16 years in
prison in
Maryland, it
was not
clear that
the law
would do
this. But
after the
latest
statements
from the
Seventh
Circuit and
the
Department
of Justice,
a clear
consensus
seems to be
emerging
that the
First
Amendment is
on the
citizen
journalists’
side.
Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.