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.