(no subject)

[lions-wings.livejournal.com]

According to a federal ruling, policemen can't just tell you to turn the camera off. It's not the first ruling upholding the right to film, but (if I understand right) it's the first involving the police. Edit: Nope! I'm confused! It just establishes stuff. Still, the establishing is cool and you should read it.

The whole thing's worth a look, but I thought a few things in particular should be pulled forward:

Moreover, 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.

Also, In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.

I'm going to be very interested in the impact this will have, going forward. What do you think?

Comments

[soliloquy76.livejournal.com]

I think it's a travesty that it took 4 years to get to this point.

This isn't what you think.

[a-new-machine.livejournal.com]

There was a First Circuit opinion that upheld the right to film already in existence when this lawsuit began. This is actually a totally different question. The plaintiff is suing under a provision called 28 U.S.C. s. 1983, which allows you to sue public officers for their violations of your constitutional rights. However, officers are shielded by a doctrine called "qualified immunity" where they act in a discretionary role in a way that is not in violation of "clearly established" law. (JSYK, arresting and prosecuting is always "discretionary," thus the lack of discussion of that issue). All that this does is find that, at the time of the violation, an arrest for filming police officers was a "clearly established" First Amendment violation, and thus the plaintiff can defeat the officers' qualified immunity and recover damages.

Re: This isn't what you think.

[a-new-machine.livejournal.com]

Sorry, should read "...that upheld the right to film police"

Re: This isn't what you think.

[lions-wings.livejournal.com]

But they arrested him when he was filming, claiming he was performing an illegal wiretapping.

So it is what I think. I think. Hm.

I'm pretty sure.

Re: This isn't what you think.

[a-new-machine.livejournal.com]

Yes, and that was already recognized as illegal at the time in the First Circuit, under the First Amendment. This just decided that this rule was "clearly established" in such a way that allows the plaintiff to sue for damages. It was already illegal, and the last guy got his case tossed on First Amendment grounds. Unfortunately for that guy, this was a first-time instance, so the rule was not "clearly established" when he was arrested, and he couldn't recover damages against the cops.

Re: This isn't what you think.

[lions-wings.livejournal.com]

Well, the "clearly established" bit is good enough for a post and some confetti, then. :p

Re: This isn't what you think.

[a-new-machine.livejournal.com]

A far more interesting 1983 case: A school outs a lesbian student to her parents following a confidential disclosure to a school official (a coach). The court is allowing the case to go forward because they found that the school violated a clearly-established right to privacy, despite the fact that this is a first-time case in that jurisdiction. It's a very close call - parents normally control the privacy limits for students, and rights in general are less effective in schools. It's kinda amazing that the case was allowed to continue for damages, really, since it relied not on an existing decision (as in your OP) but on a legal inference from other existing decisions. The meat starts on p. 7. (http://www.courthousenews.com/2011/12/05/School%20Coach%20Order.pdf)

Re: This isn't what you think.

[sophia-sadek.livejournal.com]

The police claimed that his audio recording was illegal under the "wiretapping" law, not that it was a tapping of a wire. The law criminalizes any surreptitious recording regardless of whether a telecommunications connection is used. (Of course, the police assertion of a surreptitious recording could not possibly hold up under the closer scrutiny of an open court.)

Re: This isn't what you think.

[a-new-machine.livejournal.com]

Just to clarify the procedural posture: the plaintiff has not yet proven his case. This was an appeal of a motion to dismiss made by the defendants on the basis of their qualified immunity. Immunity is a question of law, not fact, so it's decided by the judge, and the judge decided that they had no immunity, because the complaint properly alleges (note: does not prove) a violation of the First Amendment, and the factual circumstances were "clearly established" to be a violation of that right. So, all that gets to happen is the lawsuit goes forward.

Re: This isn't what you think.

[lions-wings.livejournal.com]

Ah! Then it isn't what I think!

[underlankers.livejournal.com]

I think this is a triumph for democracy, and that the greater prevalence of monitoring in general is a reminder to a lot of people to avoid being obvious if you intend to do bad things, as you never know just who might be taking pictures of it. Now, doing that behind closed doors where nobody notices.......

[enders-shadow.livejournal.com]

I'm waiting for the neocons to show up and tell us all why we shouldn't be able to videotape cops in public....

[enders-shadow.livejournal.com]

well, for all your faults, you are a [from what i can tell] libertarian
;)

so course you'd say that

Support our oops!

[sophia-sadek.livejournal.com]

Holding police accountable for their actions is disrespectful of their authority. It degrades the morale of law enforcement officers to treat them with such disrespect. Rather than filming the police as they bludgeon people to death, citizens should pin medals on their big broad chests.

[anfalicious.livejournal.com]

We have similar laws, but only one party has to consent, so as long as you can get the guy being arrested to consent to you filming you're OK.

[lions-wings.livejournal.com]

I'm... not sure!

The bit that determined this was a right refers to the role of citizen journalists, so I think it might have to do with why it was taped; if the person thought it was newsworthy that would apply, but if they got it and only said "hey, I have this evidence" when it came to court that might look very different.

I think to make a certain statement on this I would have to ask a lawyer in the necessary state, though, and I'm broke.