The debate over Ferguson and videotaping police

The public protests in Ferguson, Missouri, over a police shooting have expanded an ongoing debate about the First Amendment right of journalists and citizens to record video of police activities.

iphone2One high-profile incident in Ferguson last week saw two journalists arrested at a McDonald’s restaurant after they were confronted by police trying to clear the scene during widespread violence sparked by the fatal shooting of 18-year-old Michael Brown.

The Huffington Post’s Ryan Reilly and the Washington Post’s Wesley Lowery were at the McDonald’s trying to use a wireless Internet connection. In today’s connected world, Reilly and Lowery were on Twitter during the confrontation, and Lowery videotaped part of his confrontation with an officer.

Lowery recounted the end of the incident on the Washington Post’s website.

“This story’s going to get out there. It’s going to be on the front page of The Washington Post tomorrow,” Lowery said he told the officer. “And he said, ‘Yeah, well, you’re going to be in my jail cell tonight.’”

A third reporter contacted local police and identified Reilly and Lowery as journalists, and they were released by police.

The National Association of Black Journalists condemned the arrests, noting that Lowery had recently been named by the group as its Emerging Journalist of the Year.

“Journalists have a constitutionally protected right to work without the government interference,” Butler said. “We call on — and fully expect — the authorities to investigate what appears to be a violation of the First Amendment and to hold the officers involved to account, if necessary,” said NABJ President Bob Butler in a statement.

The confrontations between police and reporters extended far beyond the McDonald’s incident. Another video shot by a local TV station showed police shooting tear gas at an Al Jazeera America television crew, before they took apart their equipment.

The First Amendment argument in play here seems simple. Some courts have recognized the First Amendment right of citizens, including journalists, to film police in public places where they have a right to be present.

But it is not an unlimited right and it is subject to reasonable time, place, and manner restrictions in order to protect public safety.

Howard Wasserman on PrawfsBlog also points out that the Eighth Circuit Court, which has jurisdiction over Missouri, “has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording.”

Among the 12 circuit courts, only four recognize the right of the public to videotape police activity, according to a June 2014 research report from the Heritage Foundation.

In a broader sense, the Supreme Court has ruled that citizens have a general right to gather publicly available information and to publish it. The four circuit court rulings offer some guidance on how the federal courts below the Supreme Court feel about the specific issue of videotaping police officers.

In May 2014, the First Circuit appeals court reaffirmed in Gericke v. Begin that the right to videotape police performing a law enforcement act includes when police stop a vehicle to question its driver.

In New Hampshire, Carla Gericke attempted to film an officer as he was conducting a late-night traffic stop. Shortly thereafter, Gericke was arrested and charged under New Hampshire’s wiretapping statute. Gericke wasn’t brought to trial and she sued, alleging the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights.

“Based on Gericke’s version of the facts, we conclude that she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area,” the court said.

In May 2012, the Seventh Circuit Court of Appeals handed down a ruling similar is scope to the Gericke case. The case of American Civil Liberties Union of Illinois v. Alvarez involved a lawsuit against Illinois state’s attorney Anita Alvarez about a state eavesdropping prohibition. The ban would have extended to recording activities that the ACLU planned to use in a “police accountability program.”

“Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events,” said Judge Diane Sykes. “The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free speech and free-press guarantees.”

The Alvarez decision received extra weight in November 2012 when the Supreme Court declined to hear the case on appeal.

And a recent Supreme Court decision could offer some protection to people who use mobile devices and cellphones to shoot video of police officers.

The ACLU says that while the Riley v. California ruling in June 2014 requires police officers to get a warrant to inspect the contents of a cellphone, including video, if you are arrested, there may be some logic to extending the ruling to digital “standalone cameras.”

“The ACLU believes that the constitution broadly prevents warrantless searches of your digital data,” the group says in its constitutional guidelines to photographers.

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