Archive | Freedom to Gather Information

That’s what this proposed South Carolina bill (S.B. 878) (sponsored by Sen. Sheheen — who is running for governor — and now before the Senate Committee on the Judiciary) would provide:

(A) It is [a felony punishable by up to five years in prison] for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60, during its commission … [except for]

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could [...]

Lower courts have recently been holding that the First Amendment protects people’s right to audiorecord and videorecord in many public places, especially when they are recording the conduct of government officials. (See, e.g., ACLU v. Alvarez (7th Cir. 2012) and Glik v. Cunniffe (1st Cir. 2011).) This makes a good deal of sense; just as restricting the spending of money for speech interferes with the ability to speak, and is thus presumptively unconstitutional, so restricting audiorecording and videorecording events in public interferes with the ability to effectively and persuasively speak about those events.

At the same time, this opens up a bunch of questions about what limits, if any, there are on this right. (For instance, many states have laws barring one party to a conversation from secretly recording that conversation, at least in many circumstances, yet that too burdens people’s ability to gather information.) Here is one court decision from a few days ago, Askins v. U.S. Dept. of Homeland Sec. (S.D. Cal. Sept. 20, 2003), upholding such a limitation. I’m not sure what the right analysis is here, but I thought the court’s discussion was worth passing along:

According to the Complaint, Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.-Mexico border region. Mr. Askins’ work “involves extensive research, investigation, and analysis of CBP activities.” …

On or about April 19, 2012, Mr. Askins took “three or four photographs of the exit of the secondary inspection area” while standing approximately “50–100 feet from the exit from the secondary inspection area.” When he took these pictures, he was in the United States and “not engaged in the act

As I mentioned last year, a Texas appellate court upheld this statute against a First Amendment challenge. This past Friday, though, a different Texas appellate court struck the statute down (Ex parte Thompson (Tex. Ct. App. Aug. 30, 2013)). The court reasoned:

1. Photographing (at least in public places) is presumptively First-Amendment-protected activity. This includes photographing people who are in such public places, with or without their consent.

2. Prohibiting such otherwise constitutionally protected photography based on the photographer’s “intent to arouse or gratify the sexual desire of any person” is unconstitutional. “[T]he statute requires law enforcement officers to make subjective judgments regarding the photographer’s intent…. [I]nnocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment.”

3. More broadly, the court concluded that “It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment.”

I’m not sure the reasoning is as clear as it could be, but the result and the general approach seem right to me. Thanks to How Appealing for the pointer. [...]

The Hill reports that the House Judiciary Committee is investigating whether Attorney General Eric holder lied to Congress when testifying about the Justice Department’s surveillance of reporters and media organizations.

The panel is looking at a statement Holder made during a back-and-forth with Rep. Hank Johnson (D-Ga.) about whether the DOJ could prosecute reporters under the Espionage Act of 1917, an aide close to the matter told The Hill.

“In regard to potential prosecution of the press for the disclosure of material — this is not something I’ve ever been involved in, heard of, or would think would be wise policy,” Holder said during the hearing.

However, NBC News reported the following week that Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.

AtlanticWire has the full exchange that prompted the investigation and additional background here.

Now I’m no fan of the Attorney General, and have been critical of the Administration’s decision to target journalists in its leak investigations, but if this is all there is, I don’t see it.  Did Holder suggest he had less involvement in the Rosen case than he, in fact, had.  Sure.  Did he say anything that was untrue or that would justify charging him with lying under oath?  No.  Based on what I’ve seen reported, it’s not even close.

The core of the claim is that the Attorney General’s testimony conflicts with the fact that he signed a warrant application that attested that there was “probable cause to believe that the reporter has committed or is committing a violation of section 793(d), as an aider and abettor and/or co-conspirator, to which the materials relate.”  But there’s no contradiction between Holder’s statement and his reported actions, let alone a [...]

Apropos the recent posts on the Administration’s leak investigations and the press, I thought I’d note three items by our own Jonathan Adler from when a similar issue arose during the Bush Administration: Reporting Is Not a Crime: Conservatives Should Think Twice About Criminalizing Journalism (National Review Online), A Troubling Prosecution: United States v. Rosen Has Its Thorns (National Review Online), and Prosecuting the Press (a chain of posts on the subject here at the Conspiracy). [...]

YNN Rochester reports:

Amid the filming process for “The Amazing Spiderman 2” in Rochester, film crews and police, have been walking a fine line with media and civilians over public photography rights.

The question is: if police and production crews tell you not to photograph or videotape their public work, are they violating your civil rights? …

YNN’s own cameraman was told by police and film crews that he couldn’t shoot video from designated public viewing areas. Civilians who spoke with YNN were given similar instructions. [The mayor, the police chief, and the spokesman for the production company, however, later stated that such photography is permitted. -EV]

Given courts’ recognition of the general right to photograph in public places, I can’t see how photographing film shoots would be any different, so long as the photographer is standing where the public is allowed, and not blocking traffic or some such. In some situation, some commercial distribution of some of the photographs might be copyright infringement or infringement of the right of publicity, but often it won’t capture copyrighted expression, or will be fair use; mere taking of the photographs, and most noncommercial distribution of those photographs, would not be infringing, and in any event the possibility of such infringement strikes me as hardly a matter for the local police. And it appears from the story that the official views of the mayor and police chief are that such photography is indeed permitted. [...]