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Does a public access participant journalist have the right to record public police activity? Does anyone?

January 6, 2012

The first chapter of my dissertation – on which I’m (more or less) hard at work these days – includes a review of the various discourses used to talk about community media during what I’m calling its “golden era” of experimentation, the 1960s and especially 70s. I won’t go into details here (why drive down the market for my book, right?), but suffice it to say that I’ve been learning more about the history of cable/public access TV, a really great concept that rightly or wrongly (mostly the latter) became known, if at all, as a marginal space for the kooky, radical, and allegedly obscene fringe. So I was gratified to read a post by Jonathan Peters at The Nation that mentioned a public access participant journalist, Jerry Edmon Fordyce, who was arrested at a protest all the way back in 1990 and went on to file a civil suit that has some potentially important implications.

In relation to the arrest of 36 (and counting?) journalists covering Occupy events around the nation, Peters presents a FAQ regarding journalist rights while covering protests. I was especially interested in Peters’ response to this question: Do reporters have the right in public places to record police activity?

Over the last several years, as video cameras have become smaller and less expensive, the likelihood of any noteworthy (or not) event being recorded has risen steadily. Citizen/police officer interactions are particularly apt to be recorded, and I think that’s a good thing. Many police officers, however, don’t, and they have occasionally arrested the videographer for violating state wiretapping or eavesdropping laws which stipulate that all parties must consent to the audio recording of a conversation. The laws are worded differently in different states, and interpretations of those laws by the police and courts have also varied. If you’re thinking about recording the cops in Massachusetts, Maryland, or Illinois, though, you may want to find a lawyer ahead of time.

If you live in Washington, however, you can rest easier, thanks to Mr. Fordyce. While both documenting and participating in an August 5, 1990 protest march in Seattle, Fordyce had at least two encounters with the police. He testified that in the first, “his camera was deliberately and violently smashed into his face by Officer Tyler Elster while Fordyce was publicly gathering information with it during the demonstration.” Then, later in the day:

Fordyce was videotaping people on the streets of Seattle [and] simultaneously audio-recording them as well. Prior to arresting Fordyce, an officer asked him whether the videocamera was recording voices and warned him that a Washington State statute forbade recording private conversations without consent. Fordyce refused to stop videotaping two boys after an adult relative supervising them asked him to stop and complained to the police. The police officers also asked Fordyce to stop, but he refused. He was then arrested for violating Wash.Rev.Code Sec. 9.73.030.

Fordyce spent the night in jail, but the charges were ultimately dismissed. Then Fordyce filed suit against the city of Seattle and eight of its police officers (including Elster) in Washington District Court.

He sought, in addition to damages, an order enjoining the defendants from applying the statute to arrest or prosecute persons who record communications in public places with readily apparent video or recording devices…. Finding that declaratory relief would be less intrusive than an injunction, and that no injunction was necessary, the court entered judgment declaring that RCW 9.73.030 does not prohibit the recording of a conversation held in a public street, in voices audible to passersby, by the use of a readily apparent device.

As I understand it, this means that the court chose not to actively prohibit the city from arresting people for recording in public places, but it did “declare” that the law couldn’t be applied in order to prevent someone from doing so. In the end, that was the final decision, although, as one might expect, both sides appealed certain aspects of the case (which had more facets than I’ve presented here), and I can’t help but relate the seeming superfluity of what happened next.

In relation to RCW 9.73.030 (the “eavesdropping” law), the City argued that the District Court should not have granted declaratory relief because Fordyce failed to properly notify the Attorney General of Washington State about his complaint. As a result of this technicality, the Attorney General was supposedly prevented from voluntarily appearing to defend the applicaiton of the state law and instead was only able to file an amicus curiae brief. The Ninth Circuit Court of Appeals agreed and vacated the declaratory judgment. This decision was then appealed to the US District Court, which (apparently unlike the Ninth Circuit Court) took the trouble of asking the Attorney General’s office if it felt wronged for the lack of notification:

The State of Washington filed a response declining to intervene, noting that the original judgment “was consistent with the observations of the Attorney General participating as an amicus curiae,” and concluding: If the Court decides that it should grant declaratory relief, the Court should reaffirm the interpretation of RCW 9.73.030 made in its previous Order on Motions for Summary Judgment…

And that’s just what happened. The City finally (in 1995) agreed to stop opposing the commonsensical interpretation of the state law and the District Court reissued its declaratory judgment. So today, thanks to Jerry Fordyce, a participant journalist for Seattle community access television, citizens of Washington State can hold their police officers and other public servants accountable by recording the public performance of their duties. (Fordyce also received a $1500 settlement in relation to the assault allegation against Elster and had his attorney fees and costs covered by the City.)

Will the courts reach the same conclusion in other states? They apparently did in Maryland, where the case described in the link above was ultimately dismissed (though apparently without a declaratory judgment). The state of Illinois is proving to be more obtuse, however. (Also see the previous link.)

Meanwhile, the Fordyce case has been influential in shaping the outcome of at least one civil lawsuit, which was filed in response to a Pennsylvania arrest (where the charges were later dropped). In that case, according to Elizabeth Spainhour, the Third Circuit Court found that “videotaping the police with an expressive purpose may be protected by the First Amendment, while videotaping the police without an expressive purpose may not be protected”. Spainhour goes on to note that, “[f]or the average citizen, demonstrating that videotaping the police was done with an expressive purpose may be a challenge, but, presumably, posting video to a blog or YouTube would meet the threshold.” I’d say public access television would, too.

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