In its appeal before the 7th Circuit Court of Appeals, the ACLU is arguing that there is a First Amendment right to gather, record, and disseminate information on the performance of public officials and that “basic tools for gathering, recording, and disseminating expression are changing dramatically in free societies around the world.” Both propositions seem rather self-evident. But at oral argument last fall, Judge Richard Posner made news by appearing to side with the police in the case, worrying, “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers. … There is such a thing as privacy.” And the police claim, as Mark Donahue, president of the Fraternal Order of Police, told the New York Times last week, that audio recording of police officers while performing their duty “can affect how an officer does his job on the street.”
Well of course it does. The whole purpose of the newsgathering function of a free press is to do just that. As Jonathan Turley notes, without citizens recording police misconduct, America wouldn’t have known of the Rodney King beatings. Indeed, King “would have been just another guy with a prior record claiming abuse, against the word of multiple officers.”
A complete recording of arrests would not only allow citizens and journalists to hold overzealous cops to account, but also allow the police to do the same thing with overzealous citizens. That’s why last week, Chicago Police Superintendent Garry McCarthy told a panel at Loyola University that preventing the recording of arrests is as harmful for the police as it is for citizens. Clear and complete audio recordings protect cops against later allegations of abuse and brutality. “I actually am a person who endorses video and audio recording,” McCarthy said. “There’s no arguments when you can look at a videotape and see what happened.”
Police advocates who suggest that out-of-context snippets of taped confrontations will be used during the conventions or the G-8 summit to make police look bad seem to ignore that the First Amendment rests on the promise that the cure for bad speech is always more speech. Recordings will create an indisputable record of what took place. Confiscating recording devices merely because they are on creates an implication that there is something to hide.
The Supreme Court’s ruling last week in the much-anticipated GPS case highlighted the fact that modern technology will always hurtle along faster than the judicial responses to that technology. The patchwork of laws and policies around the country that apply to recording the police is one more area in which rules that arguably made perfect sense 10 years ago are not merely obsolete, but threaten core constitutional values today. Unless we plan to welcome foreign journalists to Chicago with a slice of deep dish pizza and a pair of handcuffs, we need to acknowledge that one can’t claim to be the freest country in the world without fixing a law that makes us look utterly ridiculous in the eyes of the world, even without benefit of a camera.