Tea Party Patriots has leveled many criticisms at the Justice Department and Attorney General Holder in particular. This has especially been the case since the Fast & Furious scandal came to light, and more recently as the Attorney General danced around the constitutionality of assassinating American citizens without due process.
Well, last week the Department did something worthy of three cheers by Tea Party activists around the nation – unmitigated support for the First Amendment:
The Justice Department is urging a court to affirm individuals’ rights to record police under the First Amendment, filing a statement of interest in support of a journalist suing over his arrest while photographing Maryland officers.
In the statement filed this week in a federal court in Maryland, the Justice Department argues that not only do individuals have a First Amendment right to record officers publicly doing their duties, they also have Fourth and 14th Amendment rights protecting them from having those recordings seized without a warrant or due process. The DOJ urges the court to uphold these rights and to reject a motion to dismiss from Montgomery Co. in Garcia v. Montgomery Co., a case that has implications for an increasing crop of litigation on the subject in the era of ubiquitous smartphones.
“The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. … Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges,” wrote the DOJ Civil Rights Division.
Over the last few years, the issue of taking video of public officials, especially police officers, has slowly grown in prominence. Mostly an issue for libertarian activists, it is now becoming a mainstream issue.
It’s not just the Department of Justice taking up the flag for liberty and constitutional rights, either:
In Illinois, the American Civil Liberties Union recently won a challenge to a state law banning recording individuals without both parties’ consent, with a federal judge issuing a permanent ban on enforcing the law in regards to publicly recording officers after the Supreme Court declined to hear a challenge in the case.
In Washington, D.C., the police department last summer issued an order that its officers not interfere with people recording their public duties, echoing a similar memo issued by the city of Philadelphia, where another lawsuit has been filed challenging the arrest of a man who recorded police with his cellphone.
Federal appellate courts have upheld a First Amendment right to record police in cases including Glik v. Cunniffe in 2011, Smith v. Cummings in 2000 and Fordyce v. City of Seattle in 1995, all of which Justice cites in its statement in the Garcia case.
When it comes to public officials, it is important that everyone from the crossing guard to the President is held accountable. Police are a trusted source of public safety, but obviously not all officers are that altruistic. The Department of Justice, and the Attorney General by proxy, is providing public safety and constitutional liberty important support in the digital age.