Who Will Watch the Watchmen?: Citizens Recording Police Conduct

Michael Potere

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“Get off the motorcycle!  Get off the motorcycle!  Get off the motorcycle!  State Police . . . put your hands up!” off-duty Maryland State Trooper J.D. Uhler yelled as he jumped out of his car, pulled out his gun, and ran towards motorcyclist Anthony Graber.  Trooper Uhler exited his personal vehicle wearing street clothes and, without displaying his badge, lunged towards Graber with his .40 caliber semi-automatic pistol readied.  Graber, a twenty-four-year-old sergeant in the Maryland Air National Guard, was not without a weapon of his own: he was recording the entire interaction using a helmet-mounted video camera.

Graber admits—and his camera proves—that he was speeding and driving his motorcycle in a reckless manner before his encounter with Trooper Uhler, posing a serious risk both to himself and to other motorists.  Trooper Uhler’s reaction to the situation was therefore not necessarily unreasonable, although his interaction with Graber may have initially been more aggressive than was necessary.  Either way, Graber’s story does not end with a mere moving violation.

On March 10, 2010, five days after being pulled over by Trooper Uhler, Graber uploaded footage he recorded of the incident to YouTube.  The Maryland State Police discovered the video on March 15, 2010 and charged Graber with violating Maryland’s wiretapping laws.  Graber faced eleven years in prison for his motor vehicle violations; the wiretapping charges added an additional five potential years of prison time.

A warrant was issued and six police officers raided Graber’s home at 6:45 AM on April 15, 2010.  The search lasted ninety minutes, during which the police did not allow Graber’s mother to leave for work or his sister to go to school.  The officers seized four computers, external hard drives, USB drives, and the camera Graber used to film his interaction with Trooper Uhler.  The search would have concluded with an arrest of Graber had he not been physically unable to leave his home due to recent gall bladder surgery.  Graber turned himself in to police a week later and was released after spending twenty-six hours in jail.  The relevant Maryland wiretapping statute makes it illegal to “[w]illfully intercept, endeavor to intercept . . . any wire, oral, or electronic communication”1 and to “[w]illfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication . . . .”2  The police applied the statute to Graber’s case because Maryland’s wiretapping statute prohibits interception unless all parties consent to it.

Anthony Graber’s case presents an extreme example of how far police and prosecutors are willing to go to prevent the recording and dissemination of police conduct; however, all-party consent wiretapping statutes are being similarly, albeit less dramatically, misused elsewhere in the United States.  In Massachusetts, Simon Glik used his cell phone to record police making an arrest, only to find himself in handcuffs for allegedly violating the state’s wiretapping statutes.  In Pennsylvania, police arrested eighteen-year-old Brian Kelly under the state’s felony wiretapping statute for recording a routine traffic stop.  In New Hampshire, a disorderly conduct allegation turned into a Class B felony wiretapping charge with a potential seven-year prison sentence when police discovered a video recording of their arrival at a house party on twenty-year-old partygoer Adam Whitman’s cell phone.

Why are the police pursuing citizen videographers so aggressively?  The most likely reason is that police officers fear the potentially damaging effect video footage can have on their reputation, efficacy, and safety.  This fear is exacerbated with the increasing prevalence of technology that makes it possible to simultaneously capture and edit high-quality videos, and then subsequently disseminate them on the Internet.  As a result, “[p]ervasive new camera and video technologies and social networking practices are creating a new generation of media producers [and] consumers, contributing to a ‘disappearance of disappearances’ and thus to a ‘new visibility’ in policing.”3

Although this concern is understandable, this post argues that preventing citizens from recording and publishing police conduct is an unconstitutional “prior restraint” on speech, and that this constitutional right outweighs policy arguments that might be brought to bear against it.  This post discusses these topics in turn.

I. UNCONSTITUTIONAL PRIOR RESTRAINT

The doctrine of prior restraint refers to the suppression of speech before it reaches the public.  Prior restraints traditionally took the form of requirements that individuals submit their speech to a government official for approval before sharing it with the public.  The prohibition against prior restraint has its roots in seventeenth century England.  Before 1688, nothing could be published without approval from the office of the Imprimateur.  When that office was abolished, censorship disappeared and the press was “said to be free.”4   This idea of a free press was imported to the United States and immortalized in the Free Press Clause of the First Amendment to the Constitution.

A. Near v. Minnesota

The landmark Supreme Court case that wrestled with the issue of prior restraint was Near v. Minnesota.5  There, the Court considered a Minnesota statute declaring a nuisance any publication that state officials ––including the police––considered “obscene, lewd and lascivious” or “malicious, scandalous and defamatory.”  The statute granted courts the authority to permanently prevent such speech and punish the speaker with a fine, imprisonment, or both.

The issue in Near arose when a county attorney successfully brought an action to enjoin publication of The Saturday Press for printing articles that alleged, among other things, that “law enforcing officers” were not “energetically performing their duties.”6  Of particular relevance to the topic at hand is that “[m]ost of the [publication’s] charges were directed against the Chief of Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in graft.”7 Writing for a 5-4 majority, Chief Justice Hughes protected the publication’s right to criticize police officers by invalidating the statute as an unconstitutional “previous restraint[]” on speech, comfortably couching his reasoning in the First Amendment’s Free Press Clause. Chief Justice Hughes noted that this right was “especially cherished for the immunity it afforded from previous restraint of the publication of censure of public officers and charges of official misconduct.”8

The right to record the police and the way it is being prevented in states with two-party consent wiretapping statutes is eerily analogous to Near.  Where the police in Near found that a publication that criticized police officers violated a statute that prohibited “scandalous” speech, so too are the police in two-party consent states finding that citizens who record their conduct violate state wiretapping statutes.  In so doing, the police are using state wiretapping statutes to prevent communication of a message that may be (but is not necessarily) critical of them.  And, just as the Minnesota authorities attempted to punish the publishers to prevent speech, police are attempting the same prior restraint today by threatening recorders at the scene, confiscating their cameras, arresting them, or, as with Anthony Graber, punishing them after the video has been disseminated.  Because these efforts are geared towards preventing the public from receiving messages critical of the police, this is essentially the same form of prior restraint Chief Justice Hughes ruled unconstitutional in Near, albeit with slightly sleeker technology.

A. Exceptions to the Presumptive Invalidity of Prior Restraint

The Court’s decision in Near v. Minnesota effectively created a presumption that prior restraints on speech are unconstitutional.  However, Chief Justice Hughes also suggested that the government may succeed in rebutting this presumption and succeed in stifling the speech in such “exceptional cases” where: (1) the restricted speech would “obstruct[] . . . [military] recruiting . . . or [disclose] sailing dates of transports or the number and location of troops;” (2) “the primary requirements of decency may be enforced against obscene publications;” and (3) “[t]he security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.”9  Even if one of these three standards is met, a restraint is only properly imposed when the “evil that would result . . . is both great and certain and cannot be mitigated by less intrusive measures.”10

The only Near exception that recording police conduct could conceivably fall under is the third, a standard the Court elaborated on in New York Times Co. v. United States (The Pentagon Papers Case).11  There, the federal government sought a temporary restraining order and preliminary injunction against the New York Times to prevent it from publishing classified documents about the Vietnam War.  The Court permitted publication of the documents and held that the court-ordered injunction preventing publication was an unconstitutional prior restraint.  The guiding standard emerged from the concurrences of Justices Stewart and Brennan: the government must show that allowing publication will “surely result in direct, immediate, and irreparable damage to our Nation or its people.”12

Recording police conduct does not pose a direct, immediate, irreparable threat to any community or its people.  Although footage of police misconduct might cause some initial tumult, this is not irreparable and does not necessarily pose immediate danger to national security.  In fact, the Transportation Security Administration does not even prohibit filming at airport security checkpoints, and if anything could rise to the level of threatening national security such that recording law enforcement officials is justifiably prohibited under a Near exception, surely it would be a potential threat to airport security.  Finally, exposing police misconduct is equally likely to produce increased oversight over police, leading to reform and, eventually, more stability, not less.

B. Post-Near Expansion of What Constitutes Prior Restraint

Although prior restraint doctrine has changed little in the wake of Near, the Court’s conception of what constitutes an unconstitutional prior restraint on speech has broadened over the years.  Prior restraint in the United States has historically been thought of in terms of a judicial injunction or a statutory licensing requirement, but has expanded to include other forms of governmental speech suppression, such as taxes on newspaper publication processes, or city ordinances allowing a mayor to approve permits for newspaper vending machines placed on public property.

The prohibition on prior restraints as originally expressed in Near applies to any government actor, including a police officer.  The Supreme Court made this application explicit eight years after Near in Schneider v. State.13  In Schneider, the Court struck down four city ordinances as unconstitutional prior restraints on speech.  These city ordinances required a government official, usually a police officer or the city’s police chief, to approve a citizen’s flyers or hand-bills before the citizen could distribute them.  The Court held that, “a municipality cannot . . . require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens.”14

The Court again invoked prior restraint to declare the same type of police pre-approval of speech unconstitutional in Cox v. Louisiana.15  In Cox, the Appellant led a group of protestors in an anti-segregation speech outside the State Capitol building, the local courthouse, and various businesses in Baton Rouge, Louisiana.  Although the content of the speech and the demeanor of the crowd were peaceful, the Sheriff deemed the gathering “inflammatory” and instructed the demonstrators to disperse.  In doing so, he invoked his power under Louisiana state law to arrest and charge individuals disobeying his command with disturbing the peace.  The Court invalidated as unconstitutional the Appellant’s conviction under the Louisiana statute.  Although the Court did not use the words “prior restraint,” its explanation of the discretionary application of a broad state statute that gives law enforcement officials the power to choose which speech may occur embodies the same definition.

Schneider and Cox are readily applied to police officers and prosecutors that use two-party consent wiretapping laws to justify arresting and prosecuting citizens that record police conduct.  The wiretapping statutes, though not necessarily overbroad, are being given extensive interpretation by police and prosecutors.  This interpretation gives them considerable discretion in restricting “expressions of view,” namely unfavorable views of the police.  That discretion runs counter to the dictates of Near, which clearly established the right to be free from censure for publicly criticizing public officials.  Therefore, the discretionary enforcement of state wiretapping statutes against individuals recording police conduct is an unconstitutional prior restraint on speech.  This First Amendment violation is further illuminated by the fact that the police—the very public officials who run the risk of being criticized—are tasked with determining whether to restrain an individual’s speech as a violation of a statute.

C. Subsequent Punishment is Prior Restraint

Prior restraint is the suppression of speech before it reaches the public; subsequent punishment threatens or issues punishment after the speech has been disseminated, indicating the government’s disapproval of the speech’s content and its desire to prevent similar speech in the future.  Repeatedly punishing the same speech will inevitably cause potential speakers to either censor their message or refrain from sharing it entirely.  Although “prior restraint” and “subsequent punishment” encompass different actions, the government’s desired outcome is the same: to exclude what it deems are undesirable ideas from reaching the marketplace by continuously enforcing laws that punish certain speech.  Therefore, subsequent punishment is a form of prior restraint.

The artificial dichotomy between “prior restraint” and “subsequent punishment” is problematic because it theoretically enables courts to permit prior restraints on speech if the punishment occurs after the speech takes place.  In doing so, courts can rely on Near v. Minnesota, in which Chief Justice Hughes approvingly quotes William Blackstone infamously inventing this distinction. However, both Blackstone and Chief Justice Hughes discussed the dichotomy in the context of unprotected speech, neither anticipating that subsequent punishment would be used to punish and therefore suppress protected speech.

The Court made clear its desire to prohibit subsequent punishment for protected speech in Thornhill v. Alabama.16  There the Court held unconstitutional an Alabama anti-labor union statute that forbade “nearly every practicable, effective means” of publicly communicating “the nature and causes of a labor dispute.”17  In reaching that conclusion, it noted that the statute “readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, [and] results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.”18  The Court found that subsequent punishment was a form of prior restraint in Thornhill because the statute was being selectively enforced to punish a certain type of speech, thereby discouraging that speech from occurring in the first place.

The distinction between prior restraint and subsequent punishment is particularly problematic with the advent of mobile phone technology that allows any member of the public to share content with a large audience at a relatively low cost.  The unpredictability and sheer volume of potential speakers significantly weakens the government’s ability to prevent undesired speech from reaching the public.  This is where the threat of subsequent punishment becomes useful as a form of prior restraint: while the government cannot realistically prevent every video or photo from being posted to the Internet, it can suppress speech by means of a policy of punishment.  Consistent enforcement of such a policy will eventually make the public wary of engaging in that type of speech, ultimately ending it altogether.

Although criticism (or praise) of the police by means of video footage is protected speech, some argue that it should still be prohibited because allowing it will have negative policy consequences that outweigh the benefits of improved oversight.  The next section rebuts some of those policy arguments.

II. POLICY

A. Recording Can be Dangerous

Although citizens recording the police could subject the recorder or the officer to unnecessary danger, these risks can be minimized, and allowing citizens to record the police does not necessarily subject the recorder or the officer to danger.  Thus, for example, a citizen could be exposed to considerable risk if a police officer mistakes a camera or cellular phone for a gun and shoots the recorder as a result of a split-second decision.  Videotaping the police might also distract the officers, leading to an error that harms an investigation or results in injury.  However, the police frequently make split-second decisions and act in potentially distracting circumstances.  Allowing citizens to noninvasively record police conduct is not necessarily more distracting or dangerous than anything else the police might encounter.

In addition, many police are already constantly recorded.  Not only do the police record themselves using car-mounted cameras, but they also permit television shows like COPS to videotape them for the purposes of entertainment.  Surely police officers would not expose themselves to unnecessary danger for entertainment purposes.  Nor can one argue that these two examples share the element of awareness and are therefore safer than citizens recording the police with cell phones because that same awareness can be instilled in young officers for ubiquitous citizen recording during training.

D. Institutionalization of Distrust

The police fear an “institutionalization of distrust” because they depend on the public’s cooperation to effectively conduct their police work.  Evidence suggests that the public reacts negatively to footage of police misconduct, making them less likely to cooperate with police when called upon to do so.  This problem is exacerbated when a large number of people view the footage in a short time period, in a “viral” YouTube video, for example.  Some argue that once the public develops negative feelings towards the police it is nearly impossible to reverse those feelings because these videos, once posted, do not simply disappear from the Internet.

However, if the police footage reinforces the desired belief that the police generally keep the public safe and protected, then recording and sharing footage of police conduct will actually improve the public’s perception of them.  This, in turn, will increase the public’s willingness to cooperate in police investigations.  Moreover, actively suppressing video recording of the police might also silence positive messages of police heroism and bravery, which does not help the reputation the police are justifiably trying to cultivate and sustain.  Even if some videos are negative, arresting the recorder makes the police look even worse, further undermining their efforts to curry favor with the public.  Allowing citizens to record the police is more likely to decrease the potential for “negative” videos because having the recording take place will itself serve to decrease instances of police misconduct because more transparency creates additional means for recourse in the (increasingly unlikely) event that misconduct does occur.

E. Video is Inaccurate

Finally, some argue that the accuracy of the video footage captured is a concern.  Admittedly, the camera is a technologically limited instrument for capturing an event, particularly when the camera is attached to a cellular telephone.  It is also argued that the accuracy of the footage may be limited by the intentional or unintentional bias of the videographer.  The camera operator may start the filming too late, focus on a particular element of the scene, or stop the filming too early, creating an incomplete but highly persuasive depiction of what occurred.

One remedy for the police’s fear that that false footage will spread and harm their reputations is that police, as citizens, can file a lawsuit against other citizens who publish intentionally inaccurate footage.  This serves two useful purposes without infringing First Amendment rights.  First, the threat of being sued for publishing distorting footage might discourage wanton recording of police officers.  Second, it would encourage the police to record their interactions with the public to create positive counterevidence.

Actively encouraging the police to record interactions benefits all parties involved because it increases the likelihood that the “entire” scene is captured.  This evidence would be useful not only to police in their efforts to disclaim improper conduct, but also to the citizens that received the conduct.  There are a number of ways the police could record these interactions to obtain counterevidence, some of which are already being implemented: car-mounted cameras, cameras on Tasers and guns used by police, and even cameras mounted on the officers’ bodies.  Capturing more videos can mitigate accuracy issues because footage from citizens combined with footage from various police vantage points will paint a far more complete picture than footage from a single source.

In sum, “no matter how well the police do their job . . . many people . . . will view them with animosity.”19  It is therefore better to have more information than less, because more members of the public will view the police positively when there is greater evidence showing that most police officers are properly and justly doing their jobs.  And, when evidence shows that the police cannot be trusted, the police will have every incentive to improve their performance.

III. CONCLUSION

The police protect and serve, but in the rare cases in which they do not, they are not entitled to violate the Constitution by cloaking their misconduct in secrecy.  Individuals have a constitutionally protected right to record and disseminate video footage of their police officers.  This right is encapsulated in the First Amendment’s protection of free speech and a free press, and the rights to gather information, redress grievances, expressive conduct, and be free from prior restraint.  Court rulings (and legislative activity) should affirm this right and, ideally, set standards under which the police may justifiably and constitutionally prevent citizens from capturing and transmitting video footage.  Although there are facially valid reasons to suppress this type of speech, those arguments are outweighed by arguments in favor of expanding speech and the public’s access to safe, socially responsible policing.

Acknowledgments

Michael Potere, J.D. Candidate, Northwestern University School of Law, 2012, BA in Political Science from the University of Rochester, 2007; Msc in Public Policy and Administration from the London School of Economics, 2009.

Copyright © 2012 Northwestern University Law Review.

This Legal Workshop piece is based on the following note: Michael Potere, Note, Who Will Watch the Watchers?  Citizens Recording Police Conduct,  106 N.W. L. R. __ (forthcoming 2012).

  1. Md. Code Ann., Cts. & Jud. Proc. § 10-402(a)(1) (LexisNexis 2010).
  2. § 10-402(a)(2).
  3. Andrew John Goldsmith, Policing’s New Visibility, 50 BRIT. J. CRIMINOLOGY 914, 915 (2010) (internal citations omitted).
  4. 2 Thomas Paine, Liberty of the Press, in The Political Writings of Thomas Paine 434 (George H. Evans ed. 1839).
  5. 283 U.S. 697 (1931).
  6. Id. at 703–04.
  7. Id. at 704.
  8. Id. at 717.
  9. Id. at 716.
  10. CBS Inc. v. Davis, 510 U.S. 1315, 1317 (1994).
  11. 403 U.S. 713 (1971).
  12. Id. at 730 (Stewart, J., concurring).
  13. 308 U.S. 147 (1939).
  14. Id. at 164.
  15. 379 U.S. 536 (1965).
  16. 310 U.S. 88 (1940).
  17. Id. at 104.
  18. Id. at 97–98 (emphasis added).
  19. Jerome H. Skolnick & James J. Fyfe, Above the Law: Police and the Excessive Use of Force 240 (1993).

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