A recent Gizmodo story, “Are Cameras the New Guns?,” created quite a stir in journalism circles recently. Gizmodo found that there appears to be an increase in the number of citizens arrested for filming abuse by police, or just police in action:
“In response to a flood of Facebook and YouTube videos that depict police abuse, a new trend in law enforcement is gaining popularity. In at least three states, it is now illegal to record any on-duty police officer.
“Even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists.
“The legal justification for arresting the ‘shooter’ rests on existing wiretapping or eavesdropping laws, with statutes against obstructing law enforcement sometimes cited. Illinois, Massachusetts, and Maryland are among the 12 states in which all parties must consent for a recording to be legal unless, as with TV news crews, it is obvious to all that recording is underway. Since the police do not consent, the camera-wielder can be arrested. Most all-party-consent states also include an exception for recording in public places where ‘no expectation of privacy exists’ (Illinois does not) but in practice this exception is not being recognized.”
I interviewed media attorneys Robb Harvey and Richard Goehler about this via e-mail. I have known Harvey for a couple of decades, dating back to when he represented my newsroom when I was news director. And I recently worked with Goehler on a Radio Television Digital News Association committee that wrote social media and blogging guidelines for newsrooms. You can read their edited responses below.
Al Tompkins: Are you seeing any new sensitivity by police to being photographed/videotaped?
Robb Harvey: The police have always been sensitive to accusations of wrongdoing or overreacting. I believe they are reacting to emerging technologies that allow millions of people to record events in real time, so we are likely to see more postings claiming misconduct and more efforts by police to prevent those postings.
The recent prosecutions mentioned in the Gizmodo article involved participants in the police action — persons being arrested or later charged. The video they have taken may be their best defense to the charges. Is the next step that law enforcement can prosecute recordings by bystanders? If that were the case, the widely disseminated video of the assault on Rodney King might never have seen the light of day.
Media organizations must remain vigilant and work to prevent the application of these laws in an unconstitutional way.
Richard Goehler: I would not say that I have seen any “new” sensitivity by law enforcement or firefighters here. In the past, I have heard about instances where police might confiscate or threaten to take a camera or recorder, but I would not call it a major newsgathering problem or interference.
I found the Gizmodo article very interesting. It seems to me that most of the cases highlighted in the article involved circumstances in which the videotaping or recording was of alleged abuse and/or improper conduct by the police. As a result, the police appeared more aggressive and more motivated to take action concerning the videotaping.
Often it appeared that the actions by law enforcement were in direct retaliation for the videotaping that had taken place. It was also interesting that these cases all took place in states or jurisdictions that have “two-party consent” statutes that let police officers make the argument that they had not consented to the videotaping.
Another interesting point about the cases in the article is that none of them involved traditional/mainstream media companies/reporters/videographers in their news gathering efforts. My sense is that law enforcement, even in a “two-party consent” state or jurisdiction, would be very cautious about trying to pursue claims like this against the media because doing so would surely bring a huge amount of attention and publicity with plenty of amicus support from other media organizations and journalism groups like theReporters Committee for Freedom of the Press and theSociety of Professional Journalists.
What legal advice would you give to a journalist who wants to record video of an officer in action?
If at the scene, a police officer orders that you move or position yourself in another place so as not to interfere, be prudent and use some good judgment. If you think you are being picked on and these orders are some type of retaliation by the officer, keep your head about you and continue to roll the tape while the officer directs you to another place, but try to keep the situation from escalating to the point where the officer writes you up for interfering with official police business. We may ultimately beat that ticket on a number of grounds, but it will likely mean lawyer time and effort with court appearances, etc.
The next thing I would recommend would be whenever possible, make sure that your news gathering efforts are open, visible and on public property. This will give you the best possible legal position or defense to any claim by a police officer for invasion of privacy (which truly is a merit-less claim), and/or any claim for illegal eavesdropping/recording under the most current state or federal statutes. Using cameras and other equipment with station logos, and having a marked news vehicle in the vicinity, will help in building a successful defense.
Harvey: From my observation, some police officers can be, shall we say, hyper-vigilant about the area around a crime investigation and can be quick to leap to accusations of “obstruction of justice” or “interference” with law enforcement.
Journalists should take care to … observe the “perimeter” established by the police. Identify yourselves as members of the media. If you are where you have a right to be, and are not violating someone’s privacy interests or some statute or regulation banning coverage of undercover officers, then you should have sound grounds to challenge efforts to restrict your reporting.
Sometimes a journalist will receive an order from a police officer that the journalist believes the officer lacks the authority to issue. The officer can still make an arrest or issue a citation — so exercise good judgment and take it up with the officer’s superior when things calm down.
Would your advice be any different for a person who is not working for a news department, but might be acting as a sort of citizen journalist?
Harvey: The law in the United States has not kept up with the role of citizen journalists. Many states will not even recognize them as news gatherers, or accord them the constitutional privileges and legal protections that journalists have. I would tell citizen journalists not to expect, or insist upon, special treatment.
Goehler: I don’t think my legal advice is really any different here. I think that whoever is doing the information gathering — whether it be a news reporter, a photographer, a citizen journalist or the passerby on the street — should be careful not to interfere with the activity of the police and should, whenever possible, be visible and on public property at all times. That will provide the person with the best possible legal position or defense to any of the claims discussed above.
I also think that even with today’s technology, it would be difficult for a police officer to make some type of claim that the recording done by a typical hand-held device was somehow an improper “surreptitious” or secret recording when it is done in the manner recommended above.
I do think, though, that there are some practical tips for citizen journalists who find themselves in situations like those described in the Gizmodo article. When possible, I think those individuals should seek out the support of traditional media organizations and groups like the Reporters Committee and SPJ. These groups can help provide valuable legal amicus support and/or public support through articles, editorials and publicity about these legitimate and important First Amendment activities. (And again, we need to make sure that our media clients are being vigilant as well to these situations.)