Constitutional Law

Freedom of the Press Belongs to Everyone

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In my column today, I mention last month's 1st Circuit ruling (PDF) reaffirming that the First Amendment protects the right to record the public acts of public officials, including police officers. Notably, the appeals court, which was dealing with a case in which a bystander was charged with eavesdropping after he recorded an arrest he happened to witness on the Boston Common, made no distinction between "members of the press" and the average joe:

It is of no significance that the present case…involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press….

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.

This point is frequently overlooked, since people tend to think that the press in "freedom of the press" refers to professional journalists employed by news organizations, as opposed to a technology of mass communication, which nowadays certainly includes blogs as well as newspapers and TV stations. The restrictions on political speech overturned by the Supreme Court in Citizens United, for example, included an exemption for media corporations, as if that took care of any First Amendment concerns.

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  1. This won’t stop police from threatening people who attempt to record them, from confiscating or destroying said recordings, or even arresting those who do not comply.

    At any given moment the law is whatever the man with the gun at his hip and club in his hand says it it.

    1. still bitter, i see. it colors your (for loose definition) of reasoning.

    2. riiiiight. and of course the numerous cases of officers being charged, suspended, fired, etc. for violating laws are never considered by bitter losers like sarcasmic, STILL bitter about losing a court case where they were obviously guilty as fuck, and received ample due process.

      get over it, man

      1. Those cases are the exceptions.

        And I’m not bitter about being convicted of a crime, I’m bitter about having to fix a car that ran a red light and hit me while I was in a crosswalk because some fuckhead pig refused to note that little fact in the police report. And I consider you to be a worm because you’ve stated that if you were in that pig’s shoes you would have done the exact same thing.

        1. sarcasmic, you don’t like rule of law and you don’t like being held accountable for your actions.

          you committed a crime.

          you can’t DEAL WITH THAT. so you blame the authoritahs and the system

          typical loser blame everybody but himself mentality.

          sad.

          and those cases are NOT the exceptions, but i realize that is the meme, counter evidence to the contrary…

          1. No shithead, I’m not bitter about being convicted of a crime.

            I’m bitter about having to fix a car that ran a red light and then smashed into me on my bicycle (completely destroying it), sending me over the hood to wake up in the middle of the street.

            I’m bitter because the pig refused to note the fact that the car ran a light in his report.

            I’m bitter because right after the accident the kid admitted to running the light, but after the cop told him that he could get me to fix the car if everyone agreed to forget that little fact, he changed his story.

            I’m bitter because the cop distorted the facts, coached the guy who hit me, and lied by omission in order to force me to fix the car.

            And I consider you to be a piece of shit because I know you’d do the same thing.

            1. So, what’s the crime that you are supposed to have committed?

              1. Operating a bicycle under the influence (which at the time I didn’t know was a crime).
                I broke the law. Fine. I’ll pay the fine.

                But fixing the car that hit me after it ran a red light?
                That’s bullshit.

                1. Ignorance of the law is no excuse. Unless you’re a cop.

                  1. As long as they’re following me.

          2. uh dunphy, didn’t you admit to gambling on the internet?

            1. I gamble on the internet. It’s called Sharebuilder.

              1. yes, BEFORE it was illegal. i was quite successful. i am referring to online poker. even won a tournament with about 3k entrants.

                i’ve also been a futures, option, and stock trader for about 10 yrs, which SOME people consider gambling. i don’t do anything unless i can clearly define my edge (in regards to trading, not investing), and imo the stock market/futures markets are the greatest wealth creation engine EVUH!!!

                fwiw, WA passsed a law (leftwing assmunches) making online poker a C felony. they have never charged anybody with it, and the head of the gambling commission said they didn’t intend to , however i stopped playing before the law went into effect, since it’s a C felony, it’s not worth losing my jerb over it

  2. Yet another destructive effect of the Progressive era’s flirtation with syndicalism/fascism.

    In the 18th century, the press was literally the printing press. Anyone could buy one; anyone could operate one; and anyone could hire one.

    Those were the rights that the phrase “freedom of the press” referred to, the right to purchase, operate or hire one.

    The definition of the “press” as being professionals with the implication that they were somehow credentialed or licensed is really a late 19th early 20th century bit of newspeak.

    1. Cue the JournoList crowd demanding the “legalization of the press” through licensing.

      1. The press should be safe, legal, and rare, I suppose.

        1. Or at least:
          ‘The press should be safe, legal, and under government control….’

          1. iow the “fairness doctrine”

  3. the public’s right of access to information is coextensive with that of the press….

    Oh, yeah? Well… we’ll just see about that.

    1. FBI…. “HE he you libertarian fuck tards. I have the ultimate trump card. All I gotta do is enunciate ‘national security’ and watch the balls of these judges shrivel pst their colon.”

  4. This is seems to be a very good if wierd opinion. It is unusual to see judges who have a grasp on reality.

    Look pigs, it is only gonna get worse. In a view years, you’ll have cell phone cameras that record at 3rd generation HD 4380P at 60 frames per second. They will be able to zoom in on your pig ass while you shoot dogs and kill schizophrenics.

    But Sarcasmic is right, as usual, the law is what the pigs say it is. Neither prosecutors nor judges are ever gonna upset that apple cart.

    1. As it was once explained to me by a nice man with a club and a gun, the law is only as good as your ability to enforce it. If you can’t afford a lawyer, and the cop knows it, he can do whatever the fuck he wants and there’s not a damn thing you can do about it.

      1. translation: you lost your court case because you were guilty as fuck, and were given ample due process.

        still burns,, doesn’t it?

        1. No. That was a different encounter.

          He said that I better submit to a search if I knew what was good for me (a thinly veiled threat of violence), and if he found something he’d make up some excuse for probable cause later.
          He didn’t find anything and let me go.

          1. i ph33l your pain!

    2. which of course ridiculous rhetoric is refuted daily by the thousands of people who record cops with no hassle whatsoever (i have done so myself at a protest).

      yes, there are a few locales where that right has been infringed upon. most notably a few liberal enclaves where leftwing nannystate legislators pass laws against it, and a few where cops ignore the law

      however, even a cursory scan of youtube shows THOUSANDS of videos where people recorded cops w/no interference whatsoever

      1. The problem isnt those thousand. There should be ZERO exceptions.

        1. Yep. Pretty sure it reads:
          “Congress shall make NO law….”
          Sounds clear to me.

        2. yes, and welcome to the real world. some cops abuse people’s rights.

          some LEGISLATORS do so also, by passing laws that authorize cops to do so under the auspices of these stupid laws.

          but again, the overwhelming vast majority of those who film police (and i did so myself at a protest i went to) do so without any interference whatsoever.

          1. Not overwhelming or vast enough.

            1. undoubtedly. iow, govt. is imperfect. shocking, i know

    3. Please don’t call them “pigs”, Troy. You just reinforce the bigoted biases of Dunphy and those like him.

  5. It’s established law that the freedom of the press is not limited to “the media.” Note that it’s also established law that government can’t license or really even define “press.”

  6. I think that a lot of the reason why freedom of the press has not been thought of this way in the past is that “speech” has been stretched out to cover so many things that really should be covered under press freedom. The way I see it, speech means speech, i.e. a person opening his mouth and speaking. Press means all forms of mass communication (and not just when used for news purposes, movies, websites, fiction books all are products of the press). Citizens United should be considered a free press victory, not a free speech victory.
    Very nice to see a judge making this distinction.

  7. The First Amendment right to gather news is…

    Complete bullshit. I support the recording LEOs in public places. And spit with rage when I read of those who are prosecuted for doing so. But the first amendment aint got nothing to do with it. Nothing in the first amendment says anything about gathering news.

    1. there is no right of the press if the press (which is everybody with interest to record/document etc. goings on) is infringed in going about their business.

      preventing people from recording stuff that happens in public is an infringement JUST LIKE preventing them from reporting on it would be.

    2. The court is not stating that the First Amendment is about gathering news. The court is acknowledging that the rights to free speech and freedom of the press include within their scope the gathering of news. That doesn’t mean that’s only what it’s about.

      1. Besides, what does “Freedom of the press” mean? At a minimum, it must mean “the press”, whoever that might be, is free to report whatever they choose to report. And in order to report current events and stories of interest, there must first be an information-gathering function. You can’t report the news if you can’t get the information to report in the first place.

        So why or how does the First Amendmendment NOT include news gathering?

        1. It means that you can print anything* you want on a printing press. And by expansion, other media forms.

          Has nothing whatsover to do with “reporting” other than that following under anything.

          *insert whatever exceptions you want here

          1. That is correct.

            “Congress shall make no law” really means “Congress shall make no law except under certain circumstances that will be defined at a later time.”

            1. no, it means congress shall not infringe on the press.

              if you infringe on the rights of those who are GATHERING information for later publication, broadcast, dissemination, etc. (such as people filming cops or most other things that occur in public), you are violating the first amendment

              1. I wasn’t talking specifically about the press.

                I just meant that the words “shall make no law” have been twisted into meaninglessness.

                They seem to have a pretty clear meaning to me, but then again I haven’t gone to law school to be trained how to interpret what phrases like “shall make no law” really mean.

  8. As the blogosphere has grown it’s been hilarious to watch certain members of the press whine like little babies about how “almost anyone with a laptop in their moms basement” can be journalist now, as if they had some sort of license for being a journalist in the first place.

    Freedom of the press had been badly misinterpreted in terms of whose right it was until a new form of “press” -the internet- came along.

    Personal liberty is more widely expanded as the ability for individuals to question authority and extract the truth increases.

    1. ANY “common man” has always been free to document, publish etc. his observations, just like any professional press member.

      the internet and modern recording technology just makes it EASIER to do so. the right has always existed, and is recognized in the constitution

      and attempts to infringe on it are unconstitutional

    2. ” . . . it’s been hilarious to watch certain members of the press whine like little babies about howalmost anyone with a laptop in their moms basement” can be journalist now, as if they had some sort of license for being a journalist in the first place.

      Well, yeah. If you didn’t get yourself tens of thousands of dollars in debt paying for your bullshit journalism degree, then obviously you’re not “legitimate.”

      1. for example, the derisive comment involving the “pajamas media” that the “citizen journalists/bloggers” took as a term they used to describe themselves, much as the colonist rebels adopted the term “yankee doodle ” which had originally been used as a slur by the brits.

  9. yet another counterexample to the meme that govt. never gives up power.

    in this case, the legislature passed a law limiting behavior that the courts said the authoritahs were authorized to do…

    in nannystate california of all places.

    an excellent example of rule of law and legislative responsiveness to police power excesses. imo, the court decision was wrong (on the constitution) but this demonstrates how legislators can (and sometimes do) place restrictions on authorities that courts have ruled constitutionally permissible (the opposite of courts ruling against legislative/police power)

    good for california!

    http://www.policeone.com/legal…..-in-Calif/

    SACRAMENTO, Calif. ? If you get arrested in California for any reason, the photos, e-mails and other personal data on your cell phone are now a bit safer from prying police eyes. A new law now requires law- enforcement officers in that state to obtain a warrant before searching the cell phone of a person placed under arrest.

    This law overrides a January ruling by the California Supreme Court. According to California Sen. Mark Leno, who sponsored the legislation, this ruling had “legalized the warrantless search of cell phones during an arrest, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.”
    Related Article:
    ACLU seeks info on how police use cellphone data
    Related content sponsored by:

    The new California law unanimously passed in the state Assembly. Today the office of Gov. Jerry Brown confirmed that since the governor did not make a specific decision on this legislation, it became automatically enrolled as a law this week.

  10. I’m puzzled that the courts can apply the 1A broadly (interpreting freedom of the press to mean not just freedom to publish, but freedom to gather information to publish), but not other amendments.

    You would think that it wouldn’t even take a broad reading of the 2A guarantee of the right to bear arms to overturn laws on open and concealed carry. But, somehow, a ban on bearing arms doesn’t violate the right to bear arms.

    And, seizure of property for “public use” now includes seizure of property that the public will not, in fact, be allowed to use.

    Puzzling.

    1. It’s different when it’s something we’re in favor of.

    2. I find it irritating but not puzzling. It’s plain to me that these people don’t follow any consistent set of principles, so their approach to the law is incoherent.

    3. A broad reading of the 1A rarely trips over the public safety exception.

      The same can’t be said for the 2A.

      1. Oh,right, I forgot the part at the end:
        “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed, except if the government claims a public safety issue.

        Oh that’s right, it doesn’t actually contain any exceptions.

        1. There’s libertopia, and then there’s the rest of the world we live in.

          I have no interest in debating the public safety exception. It is what it is. And it’s pervasive in all Constitutional case law.

  11. It’s still a shitty ruling, though about as good as we can expect. Freedom of the press does apply to professional journalists. It also applies to amateur journalists. Good so far.

    It also applies to “lost pet” flyers, commercial advertisements, Larry Flynt, and Stephenie Meyer. But actually asserting that would trump the conservative war on porn and the socialist war on commerce, so we just get a fraction of the protections it offers.

    1. i’m all for pr0n freedom, but it citizen journalism is clearly way easier to justify constitutionally than pr0n.

      i think they ARE both constitutionally protected, but the average joe recording police conduct in public to post on his blog is a lot closer to the kind of shit the founders routinely DID as well as intended the 1st to cover.

      for fuck’s sake, one of the things that incentivized people to revolt against britain was the reports by NONprofessional journalists on what the brits had done and were doing.

      if these same people had iphones to record the brits, they clearly would have

      1. “i’m all for pr0n freedom, but it citizen journalism is clearly way easier to justify constitutionally than pr0n”

        Really? I mean, “shall pass no law” seems pretty cut and dry.

        Now, the exact meaning of incorporation has always been more debatable, and I could accept a status quo where states and localities only had to respect journalistic or artistic endeavors, but the feds had to follow the more explicit restriction.

        If I was a weaselly judge, I’d justify it by saying that incorporation protects individual rights (among which access/expression for news, politics and art are counted), whereas the first amendment goes beyond that and is even more restrictive on Congress than rights alone demand, for better or worse.

  12. Regardless of what dunphy says, I imagine this will end up being a lot like, say, the disorderly conduct statute in Massachusetts.

    The courts have progressively limited the scope of that statute to the point where the only way you can break it is to engage in non-verbal behavior that has a high probability of inciting a violent disturbance. And that’s pretty damn hard to do.

    But the police in MA still arrest people for disorderly conduct every day. They do so because they’re secure in the knowledge that most of the people they arrest won’t know anything about MA case law. They’re OK with the people who hire laws to fight them beating the rap – they just want a tool available that will let them arrest people, because that solves whatever immediate problem they’re facing. If there’s some kind of disturbance that the police feel will be “defused” if they just arrest someone, they can trot out the disorderly conduct charge, arrest people, and then shrug when the charge is dropped later.

    This will be no different. If the law is on the books but its scope is limited by a court decision, they’ll still arrest people when they want someone to stop taping them – and then later they’ll just drop the charge if the arrested party has the resources and the knowledge to fight them.

    1. If the law’s scope was limited on the books, would that change things? If not, how exactly is it different from false arrest?

      At any rate, the solution isn’t just to force courts to drop charges, but to assert that there have been enough cases establishing this right that officers/judges should have known better, and were thus guilty of violating the recorder’s civil rights.

    2. It wouldn’t matter if everyone was a constitutional scholar. They’d still make the arrest and sort it out later.

      The issue is that the consequences for making unwarranted arrests are few and far between.

      1. you can beat the rap but you can’t beat the ride, suckers!

        1. rubbish. any # of agencies, including my own routinely come out with training updates that incorporate case law. at THAT point, officers who even arrest for the “letter of the law” contrary to the case law updates face dept. discipline and in some cases – prosecution.

          for example, my agency has come out with explicit guidelines about NOT seizing video evidence etc. when people film even a crime even a felony in progress and how we can go about preserving evidence, while respecting rights.

          cops who violate that WILL be disciplined/suspended and in similar other updates have been for ignoring the updated case law OR dept policies.

          my first police job was in MA. MA arguably has some of the MOST convoluted bizarre law (and case law) in the country.

          the only disorderly conduct arrest i made in 4 yrs there was some guy who was standing on a residential street yelling at the top of his lungs at about 2 am after i gave him 2 warnings to shut the fuck up or he would go to jail.

          see: breach of the peace (misdemeanors in your presence in MA are only arrestable if authorized by statute OR if they constitute a breach or anticipatory breach of the peace).

          and yes, it held up in court.

          and several residents of the street thanked us for making it.

          even the guy admitted he Should have been arrested (he was drunk as fuck and waking people up)

          MA has no drunk in public law, or didn’t when i worked there

        2. An unwritten but oft-spoken principle of Texas policing.

          Along with “Why? Because fuck you, that’s why.”

  13. people tend to think that the press in “freedom of the press” refers to professional journalists employed by news organizations

    Nobody is more guilty of this fallacy than the journalists themselves. And I speak as a professional journalist.
    People wonder where the arrogance of the press comes from. In part, it comes from this particular elitist falsehood.

    1. i’ve dealt with it personally when dealing with journalists (usually at crime scenes, etc.)

      cue reasonoid rant: “they’re just like cops, those arrogant fucksticks!”

  14. Although Jamie Kelly essentially beat me to it, I offer this correction:

    “This point is frequently overlooked, since professional journalists employed by news organizations tend to think that the press in “freedom of the press” refers to professional journalists employed by news organizations, as opposed to a technology of mass communication, which nowadays certainly includes blogs as well as newspapers and TV stations.”

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