In a very encouraging development, the Department of Justice filed a Statement of Interest in Garcia v. Montgomery County to support a First Amendment right to record the police. The case involves a journalist who was arrested for doing so in Maryland.
The filing is specific and detailed and argues strongly against the use of generic criminal charges to intimidate those who record the police.
First, the United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street, if officers arrest the individual and seize the camera of that individual for that activity. Second, 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. The United States believes that courts should view such charges skeptically to ensure that individuals’ First Amendment rights are protected. Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges. Third, the First Amendment right to record police officers performing public duties extends to both the public and members of the media, and the Court should not make a distinction between the public’s and the media’s rights to record here. The derogation of these rights erodes public confidence in our police departments, decreases the accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.
The Obama administration has been mostly terrible when it comes to criminal justice and civil liberties, but bravo for taking on this important issue. Time and time again we have seen video footage show that police officers have lied on police reports and engaged in brutality and abuse for which they would not otherwise have been held accountable. It is a crucial check on police misconduct and brutality.