'First Amendment rights can be terminated': When cops, cameras don't mix
By Bob Sullivan
Bob Sullivan is a consumer reporter at msnbc and author of three books on consumer affairs. His blog can be found at http://redtape.msnbc.com/ and his books at http://bobsullivan.net/
The video is chilling, but it's also a sign of the times.
"Your First Amendment rights can be terminated," yells the Chicago police officer, caught on video right before arresting two journalists outside a Chicago hospital. One, an NBC News photographer, was led away in handcuffs essentially for taking pictures in a public place. He was released only minutes later, but the damage was done. Chicago cops suffered an embarrassing "caught on tape" moment, and civil rights experts who say cops are unfairly cracking down on citizens with cameras had their iconic moment.
Tales of reporters, protestors and citizen journalists being threatened or arrested for filming law enforcement officials during disputes are on the rise, critics say, with Occupy Wall Street protests a lightning rod for these incidents. The National Press Photographers Association claims it has documented 70 such arrests since September and, in May, called on U.S. Attorney General Eric Holder to focus attention on the issue.
"The First Amendment has come under assault on the streets of America," the photography association said in a letter to Holder that was also signed by several other interest groups. "Police have arrested dozens of journalists and activists simply for attempting to document political protests in public spaces.”
Such allegations are ironic, given the sharp rise in police surveillance technology, which gives cops vast capabilities to film citizens, said Catherine Crump, an American Civil Liberties Union attorney.
"It is true that Americans are photographed more and more today as they walk around in public spaces," Crump said. "And it is ironic that law enforcement agencies are objecting when the same activity is being used to film their activities. But it's not surprising because there's often a double-standard in this space."
There's always been a tense relationship between cops and cameras, but that relationship is being pushed to the brink now that half of U.S. adults carry smartphones, nearly all of them capable of filming and sharing visuals instantly with the whole world via the Internet. Cops at Occupy Wall Street protests -- such as those at Zucotti Park in New York City -- routinely deal with dozens of amateur photographers shoving cameras in their faces, many of them aggressive. It's not hard to see how the cameras can escalate an already tense situation.
But First Amendment law is clear: Citizens in public spaces have a right to film things they see in plain sight. Courts have repeatedly upheld that right in high-profile cases.
Court rulings sometimes have no bearing during intense situations, however.
"It wouldn't really matter with some police officers if you had an original copy of Bill of Rights with you," said Mickey Osterreicher, a lawyer for the press photographers association. He said he deals with new cases nearly every day involving photographers who he believes have been wrongly arrested.
"The sign on my desk that reads, 'Bang head here,' is getting worn out," he said.
In April, Connecticut's State Senate passed a law that clearly defined citizens' right to film, but the state's lower house failed to act on the measure. The proposal was introduced by Sen. Majority Leader Martin M. Looney , D-New Haven, after a series of incidents involving cops in that state's capital city. In one, a police officer is caught on camera saying “You don’t take pictures of us,” before making an arrest. In another incident, 26-year-old Luis Luna was arrested for filming an arrest, and video files on his iPhone were deleted.
"In the past several years, police officers have wrongly arrested members of public for using video cameras or cell phone cameras," said Adam Joseph, a spokesman for Looney. "In the opinion of a number of senators, there were far too many instances, and that demonstrated the right to videotape needed to be codified and is unfortunately necessary."
The proliferation of devices that can film and share has made this conflict almost inevitable, but there are other causes, too.
“So many mainstream journalists have been laid off and are freelancing,” said Osterreicher, the press association lawyer. ”Then you have people who consider themselves citizen journalists. They have ‘pro-sumer’ devices capable of taking video and still images with the same quality as pro equipment, and can share them with the world, without mainstream media. That’s something we've never seen, until recently.”
As a result, civil liberties lawyers have beaten a path to courthouses around the country, said Crump.
"We do hear about these more frequently now because everyone walks around with cell phone cameras,” she said. “Law enforcement officers sometimes react badly to this, and view it as a threatening act.”
The most celebrated case involves Simon Glik, who in 2007 filmed police arresting a homeless man near Boston Commons. Glick was arrested and charged with violating the state's wiretapping law. His case was dismissed, but he then brought a federal civil rights lawsuit against the city. In August 2011, the First U.S. Circuit Court of Appeals for the First Circuit ruled unanimously in his favor.
"That decision is 24 pages of pure gold," Osterreicher said. "The judges talked about the right to record in public. They said the First Amendment right is self-evident. They took judicial notice of the fact that news is as likely to come from someone with a cellphone as anyone. And they talked about the fact that police officers … should expect to be recorded when out in public."
In March of this year, Boston paid Glik $170,000 to settle the suit.
"It's really not up to police officers to decide what is and isn't newsworthy," Osterreicher said. "It's a shame Boston had to learn an expensive lesson."
Other rulings have offered a similarly strong endorsement of the right to film, Crump said.
"The First Amendment is strongly protective of right to video and record in public spaces. There’s obviously a good reason for that. Sunlight is the best disinfectant," she said. She said court rulings have been so consistent, she’s not worried about any weakening of the First Amendment – but she is worried about the more practical side of the problem. Glik's settlement -- most of which paid for his legal fees -- took five years to arrive. In most real-life situations, police officers have wide discretion, and few observers have the time, money or wherewithal to see a First Amendment case through to completion.
Osterreicher, both a former journalist and a reserve police officer, prefers far more practical methods. He travels the country training police officers in First Amendment law. Invited by Chicago police brass, he offered such training in advance of recent NATO meetings in Chicago, which attracted sizable protests. He thinks it worked: To his knowledge, only one photographer was arrested during those protests.
He also offers suggestions tips to would-be cop videographers.
"The First Amendment is not absolute," he said. "It is subject to reasonable time, place and manner restrictions. But the key word is ‘reasonable.’ Is it reasonable when covering a protest to ask someone to stand back or get on a sidewalk? Absolutely. Is it reasonable to expect the press to go away when there is an order to disperse? No."
One rule that is fairly absolute, he said: While there are situations when police can seize cameras and cellphones, they have no right to destroy data, such as pictures or videos, without consent from the owner. In fact, doing so could be considered destruction of evidence.
The ACLU hosts an information page designed to help amateur photographers understand their rights on its website. But Crump offered a thumbnail sketch of the law that draws an important distinction between public and private property.
"Generally, when you are in a public space where you have the right to be, you have right to photograph anything in plain view, and that includes police who are executing their duties,” she said. “But if you are on private property, the property owner gets to set the rules.”
But Osterreicher said any advice photographers receive should come with a warning: "It's complicated."
"I can't give you an answer that covers all situations. You’re going to have to make an assessment,” he said “Is this officer nonchalantly asking you to move? Or is he getting real cranky? A lot of situations can be defused with conversation. … You want it to end well.”