Letter from America: US court upholds right to record police officers

A US court of appeals ruled this past week that citizens — whether they’re journalists or not — have a right under the First Amendment to peacefully film or record police officers on the job in public. The question has come up repeatedly as the widespread use of sophisticated camera-ready cell phones has enabled a level of transparency and accountability in public safety that potentially makes every civilian on the street on a backstop against police misconduct.

Police officers from Maryland to California have cited vague state wiretap laws to not only object to the practice but also arrest citizens caught doing it. Some state laws make it illegal to record audio or video of a person without his or her consent. Police officers have also argued that such footage violates their privacy.

Many legal scholars, though, have countered that such logic can’t reasonably extend to police officers performing their duties in public — and that such a policy clearly violates the public interest. A three-judge panel for the U.S. Court of Appeals for the First Circuit unanimously agreed, writing:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws ‘abridging the freedom of speech, or of the press,’ and encompasses a range of conduct related to the gathering and dissemination of information. … The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’

The case began in October of 2007 when Simon Glik, a lawyer, shot video footage with his cell phone of police officers in Boston whom he believed were using excessive force to arrest a young man. Glik objected to one of the officers, explained that he had recorded footage, and was promptly arrested himself. His cell phone was also taken.

The charges against Glik — which also included disturbing the peace — were dismissed by a judge several months later. Glik attempted to file an internal-affairs complaint with the Boston Police Department against the officers involved. When that complaint went nowhere, he filed a lawsuit, in February 2010, against the officers arguing that his civil rights under the First and Fourth Amendment had been violated.

In siding with Glik, the court stressed that the right to collect information on public officials in public belongs equally to journalists and civilian bystanders, particularly in the age of “citizen journalism” and ubiquitous camera phones. The judges wrote:

Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

The decision was praised this week by the New York Times editorial board, the ACLU and legal scholars.

Emily Badger is Index’s US editor

Letter from America: On politics, religion, and the right to ask about the two

During one of the first major Republican debates in the presidential primary earlier this month in Iowa, Byron York, a journalist for the conservative Washington Examiner, asked Michele Bachmann a question that’s been on many minds but few tongues this summer.

In 2006, when you were running for Congress, you described a moment in your life when your husband said you should study for a degree in tax law. You said you hated the idea, and then you explained: ‘But the Lord said, be submissive. Wives, you are to be submissive to your husband.’ As president, would you be submissive to your husband?

The question drew gasps and boos from the mostly conservative audience, and Bachmann herself at first seemed taken aback by it. She nimbly turned the query into an opportunity to talk about how much she and her husband of almost 33 years love each other. And, in the end, the exchange did more damage to York than to her.

In the week since then, a perennially uncomfortable public debate has emerged over the role of religion and the US presidency, accompanied by a meta-debate over whether Americans — and, in particular, journalists — should even be asking questions about the relationship between the two.

Conventional wisdom says the Republican primary has crystalised over the last week into a race between three candidates who come with intriguing religious story lines: Bachmann, whose particularly Evangelical form of Christianity was the subject of a lengthy (and, to many, alarming) New Yorker profile last week; Mitt Romney, whose Mormon heritage elicited much suspicion during his last run for the job in 2008; and Texas Gov. Rick Perry, who angered atheists by hosting an 8,000-person strong Christian prayer revival two weeks ago in which he asked God to help guide a “nation in crisis” when its politicians have proven unable to do that alone.

NPR characterised Perry’s event as sparking a “holy war” among critics “who claim it [was] Jesus-exclusive and political.” The New Yorker profile of Bachmann, which followed shortly thereafter, upped the ante on the religious alarmism. And then Byron York asked Bachmann, a Tea Party favorite, about her Biblically based beliefs on the “submissive” role of women to their husbands.

Since John F. Kennedy, the first Catholic in the White House, Americans have prided themselves on holding no religious litmus test for the office. The separation of church and state — as central to the American political identity as protections for free speech also enshrined in the First Amendment — means elected officials can’t impose their beliefs on others but also have a right to believe in whatever they want themselves.

Bachmann and Perry, though, have touched a nerve among voters and commentators who aren’t convinced they share that same interpretation of the establishment clause. And in that context, York’s query was extremely relevant.

As the discussion on one popular legal blog put it:

“Rep. Bachmann’s religious beliefs are a mandatory topic for thorough examination and public debate. Why? Because she espouses a brand of Christianity that seeks not merely to transform the institutions of government, but to absorb them into a reconstructed society build upon a foundation of Old Testament law, a goal which implicates the Constitution and which strikes at the heart of the idea of secular government.”

York’s many critics since last week of course will disagree with this. But to suggest that all queries along these lines should be off-limits for the next year — particularly as they relate to politicians who have willingly made such a public show of their private faith — is disingenuous. Yes, Perry and Bachmann have a right guaranteed by the Constitution to follow any faith they chose. But voters and journalists have a right, too, to ask about how that faith will impact a candidate’s positions in office when the evidence thus far suggests that it might. Critics who want to shout down those questioners, claiming offense, stifle an important election-year debate.

Emily Badger is Index on Censorship’s US Editor

Letter from America: On politics, religion, and the right to ask about the two

During one of the first major Republican debates in the presidential primary earlier this month in Iowa, Byron York, a journalist for the conservative Washington Examiner, asked Michele Bachmann a question that’s been on many minds but few tongues this summer.

In 2006, when you were running for Congress, you described a moment in your life when your husband said you should study for a degree in tax law. You said you hated the idea, and then you explained: ‘But the Lord said, be submissive. Wives, you are to be submissive to your husband.’ As president, would you be submissive to your husband?

The question drew gasps and boos from the mostly conservative audience, and Bachmann herself at first seemed taken aback by it. She nimbly turned the query into an opportunity to talk about how much she and her husband of almost 33 years love each other. And, in the end, the exchange did more damage to York than to her.

In the week since then, a perennially uncomfortable public debate has emerged over the role of religion and the US presidency, accompanied by a meta-debate over whether Americans — and, in particular, journalists — should even be asking questions about the relationship between the two.

Conventional wisdom says the Republican primary has crystalised over the last week into a race between three candidates who come with intriguing religious story lines: Bachmann, whose particularly Evangelical form of Christianity was the subject of a lengthy (and, to many, alarming) New Yorker profile last week; Mitt Romney, whose Mormon heritage elicited much suspicion during his last run for the job in 2008; and Texas Gov. Rick Perry, who angered atheists by hosting an 8,000-person strong Christian prayer revival two weeks ago in which he asked God to help guide a “nation in crisis” when its politicians have proven unable to do that alone.

NPR characterised Perry’s event as sparking a “holy war” among critics “who claim it [was] Jesus-exclusive and political.” The New Yorker profile of Bachmann, which followed shortly thereafter, upped the ante on the religious alarmism. And then Byron York asked Bachmann, a Tea Party favorite, about her Biblically based beliefs on the “submissive” role of women to their husbands.

Since John F. Kennedy, the first Catholic in the White House, Americans have prided themselves on holding no religious litmus test for the office. The separation of church and state — as central to the American political identity as protections for free speech also enshrined in the First Amendment — means elected officials can’t impose their beliefs on others but also have a right to believe in whatever they want themselves.

Bachmann and Perry, though, have touched a nerve among voters and commentators who aren’t convinced they share that same interpretation of the establishment clause. And in that context, York’s query was extremely relevant.

As the discussion on one popular legal blog put it:

“Rep. Bachmann’s religious beliefs are a mandatory topic for thorough examination and public debate. Why? Because she espouses a brand of Christianity that seeks not merely to transform the institutions of government, but to absorb them into a reconstructed society build upon a foundation of Old Testament law, a goal which implicates the Constitution and which strikes at the heart of the idea of secular government.”

York’s many critics since last week of course will disagree with this. But to suggest that all queries along these lines should be off-limits for the next year — particularly as they relate to politicians who have willingly made such a public show of their private faith — is disingenuous. Yes, Perry and Bachmann have a right guaranteed by the Constitution to follow any faith they chose. But voters and journalists have a right, too, to ask about how that faith will impact a candidate’s positions in office when the evidence thus far suggests that it might. Critics who want to shout down those questioners, claiming offense, stifle an important election-year debate.

Emily Badger is Index on Censorship’s US Editor

Blocking mobile networks to quash protest? Already a reality in the US

Last Thursday evening, the Bay Area Rapid Transit authority in San Francisco — better known as BART — was worried about the consequences (and likely public relations mess) of a protest planned inside its subway system to denounce a fatal police shooting earlier this summer by BART police officers. As a preventive measure, BART deployed a tactic many commentators have since likened to Hosni Mubarak’s playbook: It shut down cell signal in four stations for several hours to prevent protesters from organising.

As it turns out, inviting comparisons to deposed Egyptian dictators — and at the historic epicenter of the US free-speech movement — posed a much bigger PR disaster than anything that would have come from a nonviolent police protest. More protests were then planned. Anonymous hacked BART’s website. The Federal Communications Commission is now looking into the incident. Several California politicians have expressed shock. And free speech advocates across the country are furious about a US precedent for exactly the type of social-media policy officials in the UK have been weighing since last week’s riots.

Making matters worse, BART officials have dug in to defend the decision rather than distance themselves from it, arguing that riders’ constitutional right to safety trumps protesters’ constitutional right to free speech. The agency has not promised it won’t deploy the same tactic again in the future.

“Inside the fare gates,” a BART spokesperson told a local TV channel, “is a non-public forum, and by law, by the Constitution, the U.S. Supreme Court, there is no right to free speech there.”

Eva Galperin with the Electronic Frontier Foundation was having none of this logic on EFF’s blog:

“Cell phone service has not always been available in BART stations. The advent of reliable service inside of stations is relatively recent. But once BART made the service available, cutting it off in order to prevent the organisation of a protest constitutes prior restrain on the free speech rights of every person in the station, whether they’re a protestor or a commuter. Freedom of expression is a fundamental human right. Censorship is not okay in Tahrir Square or Trafalgar Square, and it’s still not okay in Powell Street Station.”

The ACLU on Monday sent a letter to both BART and the Federal Communications Commission saying:

“BART’s actions must be seen in the context of today’s events. All over the world, people are using mobile devices to protest oppressive regimes, and governments are shutting down cell phone towers and the Internet to silence them. BART has never disrupted wireless service before, and chose to take this unprecendented measure for the first time last week in response to a protest of BART police. BART’s decision was in effect an effort by a government entity to silence its critics.”

Rex Huppke, a commentator with the Chicago Tribune, downplayed all the drama, underscoring that many people view electronic communication — and the right to freely text, email, or associate online — as some less legitimate version of free expression.

“We have more than enough ways to communicate in this day and age. Briefly losing access to a score update or a Facebook note about sushi or a message from work isn’t an assault on freedom.”

A year ago, BART might have gotten away with the move with less public outcry. But in the wake of the Arab Spring, any police action in the West that conjures up images of censorship in the Middle East will inevitably alarm Americans. Along with reaction to the riots in the UK, the BART incident has awoken many people to the reality that technology creates complex new means of censorship anywhere in the world.

Emily Badger is Index on Censorship’s US editor