A PLEA FOR A BROADER INTERPRETATION OF THE FIRST AMENDMENT
By Witold Walczak
Are cell-phone cameras an indispensable tool in the fight for freedom, or an instrument of crime? The answer, which may surprise you, depends on who you ask and where you record. For instance, in the United States police regularly prosecute and harass amateur photographers, especially when they are recording police misconduct, and courts have been reluctant to declare such photography to be a constitutional right. But the recording of government officials performing their duties, especially in public places or where they have no expectation of privacy, is too important in promoting human and civil rights to be left without legal protection.
Millions of people around the world were transfixed recently by images of government-sponsored thugs inciting and beating protesters in Cairo’s Tahrir Square. Despite former President Hosni Mubarak’s ill-fated effort to incapacitate reporters through harassment and detention, the images continued unabated, thanks largely to cell-phone-camera recordings posted on YouTube, Facebook and other Internet platforms. A similar scenario is playing out in Bahrain, Yemen, Algeria and elsewhere in the Middle East, where amateur photographers are managing to maintain international attention and promote diplomatic pressure by publicizing police violence against peaceful protesters.
What few people realize is that this photojournalism, which we view as heroic and essential to promoting freedom on the world stage, is often illegal and punished criminally in the United States. People doing exactly the same thing as Egyptian demonstrators – documenting police misconduct with cell phone cameras – routinely face prosecution, harassment, or the confiscation of their equipment by police.
For instance, in a widely publicized 2010 case, motorcyclist Anthony Graber was pulled over for speeding by a Maryland state trooper, who issued him a citation. Several weeks later, after Graber had posted on YouTube footage shot by his helmet cam showing the trooper cutting Graber off and pulling a gun on him, the officer arrested Graber for violating Maryland’s wiretapping law. Graber spent 26 hours in jail and faced felony charges that could have brought 16 years in prison. Graber is a staff sergeant with the Maryland Air National guard and has a family with two young children – hardly the profile of a hardened criminal. A judge dismissed the charges against Graber in September. Graber’s experience is not, however, unusual. Similar stories abound from Pennsylvania, Illinois, Massachusetts, Florida, Texas and elsewhere.
Reporters understand the importance of recording events, perhaps better than anyone. “A picture is worth a thousand words” is more than just a cliche. Images have had a powerful influence on human rights and civil rights struggles. Film of Bull Connor’s police attacking peaceful African-American demonstrators in Birmingham with fire hoses and snarling police dogs may have been a more important catalyst for the 1964 Civil Rights laws than any speech given by Martin Luther King, Jr.
Attracting attention to unjust policies and brutal treatment is indispensable to the strategy of non-violent civil disobedience movements, pioneered most famously by Mahatma Gandhi in early 20th century South Africa and later India. Shining the spotlight on injustice and human rights violations galvanizes public opinion, and a visual depiction does so like no other medium. It is timely, real and not subject to interpretation or refutation in the same way as written accounts. Such images are often irrefutable proof of what transpired, giving the poor and powerless an elevated and equal status to rebut the lies and propaganda of corrupt officials.
Consider the now-famous video shot by a Los Angeles plumber in 1991 of police savagely beating an unarmed, helpless man named Rodney King. Without that video the story told by the dozen police officers would have been different – just another black criminal resisting arrest, requiring the police to use necessary force to subdue him. Who are you going to believe? A dozen law enforcement officers or a two-bit criminal? But that videotape altered the usual balance of power, giving the little guy the means to speak truth to power in a way that nothing else could. Police themselves recognize the importance of such video documentation, having for two decades clamored for installing video-recording capability in their cruisers.
Now, thanks to the advent of digital photography, the proliferation of cell phone cameras and the technological ease of posting images on Internet platforms like YouTube, Flickr and Facebook, the ability to document current events in realtime has become ubiquitous. More than half the people in this country have cell phone cameras, and that number is growing.
Any one of these people may now be the lucky photojournalist on the scene when “news” happens, be that a crime, accident, natural disaster or important event. Just ask the unhappy objects of such candid recordings, like President Obama and his comments at a San Francisco fund-raising event about Pennsylvanians being “bitter” and “clinging” to their “guns and religion,” or Senator George Allen and his “Macaca” snafu.
On a more profound level, there can be little question about the important role cell phone cameras have played in promoting international human rights in Egypt, Burma and Iran. A bystander’s video capturing the last horrifying moments before Neda Agha-Soltan’s death in Iran became not only the most-watched video of a person dying, but a rallying cry for protesters contesting President Ahmadinejad’s election. While the Iranian protests didn’t elicit the same revolutionary change as in Egypt, few would dispute that the world-wide publicity surrounding the administration’s repression prevented greater bloodshed.
Yet despite the demonstrable importance of such amateur photography to promoting democracy and governmental accountability, police and other government officials in this country use a variety of techniques to routinely prevent citizens from documenting misconduct and corruption.
Wiretapping violations, like those brought against Anthony Graber, are a police favorite. Most states and the federal government have one-party-consent laws, which means that anyone can pretty much record anyone else. But a dozen or so states still maintain “dual-consent” wiretapping statutes. Originally passed to protect people from surreptitious electronic eavesdropping, these laws require both parties to a conversation to consent to the recording. Absent a warrant, no one can surreptitiously eavesdrop, and vice-versa. So in states such as Pennsylvania, Illinois, Massachusetts and Maryland, police regularly charge people with a wiretapping violation – a felony – for recording the police performing their duties. In most of these states the courts have said that the ban does not apply to recording government officials in situations where they have no expectation of privacy, but often police charge and district attorneys prosecute anyway. Illinois courts do not recognize the no-expectation-of-privacy exception, something currently being challenged on constitutional grounds by the ACLU of Illinois.
Police also regularly use more general criminal charges to discourage and punish people for daring to record them. Disorderly conduct and some variation of interference with official conduct are two common charges. In other situations, the police simply tell people that it’s illegal to record the police, and then threaten to arrest them or confiscate their equipment unless they stop, which usually accomplishes the desired result. Since September 11, 2001, people have routinely been told by police that they cannot photograph courthouses and other government buildings, or transportation nodes and petro-chemical plants, but in fact no laws prohibiting such photography exist.
Unfortunately, the court decisions on whether a person has a “right” to record government officials, including police, are inconsistent. Courts in most states, even those with dual-party consent requirements (except Illinois), have recognized exceptions for recording official acts of government agents occurring in public or where they have no expectation of privacy, like when effecting an arrest in your car, home or office. Consequently, victims of these charges can sue for false arrest – which is an important deterrent – but does not help the person who is dissuaded from recording just by the threat of official sanction or a less severe retaliatory act.
The First Amendment to the Constitution protects the freedoms of speech, assembly, petition and religion. This should include providing videographers with safe haven. The Court decisions are mixed, however, with some saying First Amendment protection applies, a few saying it doesn’t, and the rest saying the law is unsettled. Courts have employed various arguments to refuse constitutional protection, including specious claims that the recordings invade the official’s privacy or expose her to embarrassment or ridicule. Privacy defenses don’t apply when the conduct occurs in public, or where the official has no expectation of privacy, like when the official is in the act of arresting someone in the suspects home or is rummaging around in his or her car trunk. Defamation-type defenses do not insulate a person from having their stupid, embarrassing, illegal or criminal acts recorded. But two strands of constitutional doctrine pose more serious obstacles to First Amendment protection for recordings of public acts.
The Supreme Court ruled more than forty years ago that there is no constitutional right to gather information. Typically, this prevents the news media from being able to access information or proceedings that are not also open to the public. In other words, even the First Amendment’s press clause doesn’t give reporters any “special right” of access, like interviewing prisoners or covering private presidential events. Another line of constitutional argument is that the act of recording is pure conduct with contains no expressive component, and thus absent any communicative intent or effect there is no First Amendment protection. While both arguments have some vitality, they can, should and must be rejected.
The no-special-right-to-gather-information argument is relatively simple to refute. Cell-phone recorders are not seeking any special privilege or access. The recordings are made from public places, like Tahrir Square or the streets of South Central Los Angeles. Or they are in one’s car, home or business, where the person has a right to be and where the police have no legitimate expectation of privacy. This is not about any special right of access but simply about being allowed to document events from locations where you have a right to be.
The argument that the act of recording is pure conduct, with no expressive component, and thus not entitled to First Amendment protection, also misses the mark. The acts of painting, writing and composing music are constitutionally protected, not just the publication of the end product, be it art, a book or a song. No court would tolerate a law, or a public official telling someone, that this conduct is illegal. Just as the act of creating art or some other form of communication or expression is itself protected, so too should be the recording of images that presage broadcast. Support for this view comes from what some may consider an unlikely source, Justice Antonin Scalia.
Writing in a dissent from the first campaign-finance-reform case in 2003, McConnell v. Federal Election Commission, Justice Scalia, less surprisingly, invoked a market analogy to argue for protecting the entire communication-production process:
In any economy operated on even the most rudimentary principles of division of
labor, effective public communication requires the speaker to make use of the
services of others. An author may write a novel, but he will seldom publish and
distribute it himself. A freelance reporter may write a story, but he will
rarely edit, print, and deliver it to subscribers. To a government bent on
suppressing speech, this mode of organization presents opportunities: Control
any cog in the machine, and you can halt the whole apparatus. License printers,
and it matters little whether authors are still free to write. Restrict the sale
of books, and it matters little who prints them. Predictably, repressive regimes
have exploited these principles by attacking all levels of the production and
dissemination of ideas.
Justice Scalia’s dissent became prevailing law last year in Citizens United v. Federal Election Commission. In striking down the McCain-Feingold law’s restrictions on corporate financing of campaign speech, the Supreme Court recognized that the First Amendment does not allow the government to “repress speech by silencing certain voices at any of the various points in the speech process.” Corporate financiers are no more indispensable to campaign ads than the videographers are to the clips of police brutality from Egypt that appear on YouTube. If courts do not protect the entire production process, the culmination of that process – be it song, poem, pamphlet, commercial, video, picture, news account or some other unquestionably protected form of expression or communication – becomes vulnerable and ceases to be a right.
Freedom and respect for human rights are indisputably advanced by cell-phone recordings documenting abusive government officials. The Supreme Court in Citizens United implicitly recognized the importance to these causes of protecting the essential links in the communication chain when it wrote that, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” The urgency in protecting these cell-phone recorders applies not just in those democracy-aspiring countries. As media companies in this country continue to shrink coverage, the amateur videographer will become even more important in exposing illegal corruption, civil rights and civil liberties violations, and helping to hold accountable those who abuse power.