Court redefines “The Press”

Narces Benoit's videoThis was inevitable.

A few weeks ago, I wrote of the coming clash between police and everyday people with cameras. The issue advanced significantly on Friday with a stunning Federal Appeals Court ruling affirming the First Amendment right of citizens to photograph or create videos of police while they’re on duty. Police agencies in some communities were using an odd interpretation of wiretap laws to confiscate the camera phones of bystanders, and the court rightly found that to be unconstitutional.

The decision has far-reaching implications that go beyond the mere taking of pictures at crime, disturbance and accident scenes. By granting everyone this “right,” this ruling redefines “the press” in this country by shattering the myth of privilege associated with working for a so-called “legitimate” news organization. Some will cry that it opens Pandora’s Box, because a clearly defined “press” helps the machine of modernity function. This decision is potential chaotic, for example, to those cultural institutions who have a vested interest in keeping their “news” in the hands of a professional class (that can be manipulated). Think of an agency holding a press conference, for example. If press freedom applies to everybody, then that agency cannot restrict access to only those who work for a news organization.

The decision should make anybody in a traditional newsroom shutter. As we’ve been saying for years, the personal media revolution — what Jay Rosen calls “the Great Horizontal” — IS the second Gutenberg moment in Western civilization. It destroys the hierarchical infrastructure of the modern world and scatters authority across the people that the hierarchy was supposed to serve. Hierarchies, however, are comprised of human beings, and each has drifted into self-preservation and self-advancement rather than service.

It’s an enormous cultural shift, because power disrupted impacts everything. If the First Amendment press freedoms now belong to everyone, we clearly need an entirely different way of thinking about how information gets created and distributed in the culture. We’re going to hang onto the old for as long as we can, but we MUST be exploring ways to compete against that model, because the path for others to compete against us is now much simpler.

The ruling itself is fascinating, and I strongly recommend you go read it. The language is clear, as the following excerpts reveal. The case itself originates from a 2007 incident in Boston. Simon Glik was arrested for using his cell phone to film several police officers arresting a young man on the Boston Common. The case was thrown out in municipal court, but Glik sued. The Federal District Court affirmed the suit, which was automatically appealed to the 1st Circuit Court of Appeals, which issued its decision Friday.

The defendants moved to dismiss Glik’s complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants’ motion, concluding that “in the First Circuit…this First Amendment right publicly to record the activities of police officers on public business is established.”

…is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

As I wrote a few weeks ago, police in many places are using the smokescreen of wiretap law violations to avoid scrutiny, and I warned of the consequences:

The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

…In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.

Technology is altering many of the core beliefs and functions of the modernist world. This is why I’ve maintained a blog for the past ten years under the banner “The Pomo Blog.” Pomo stands for postmodern, and all of my ideas, suggestions and memes flow from the belief that modernism died the day the Web was created. This simple observation has been validated almost every day.

We want and need things to stay the same, because it’s what we understand. This includes media, so let me repeat for those with ears to hear that our future is along a different path, and the sooner we get on it, the better. There is no value in being the last buggy whip maker.

Media 2.0 101: The technology beat isn’t optional

the technology beatI’m going to leave the world of technology for a bit today to talk “about” the world of technology, because I think media companies are missing a big, ongoing story, simply because we’re a part of it. An entirely new media industry has birthed, blossomed and produced fruit within the last 15 years, and its coverage area has expanded to the point where mass media companies have no choice but to get onboard. I’m referring to tech media and its grip on information about the most amazing phenomenon of the new age.

We view technology only as a way to make our jobs easier, but that’s a little like putting electric lights on a ship designed to hunt whales for the lantern oil industry. Technology is far more than “our” tools; it’s the biggest story to come along since the printing press, yet we somehow manage to either completely or mostly ignore it.

This is vastly oversimplified, but tech media began as a way for certain geeks to inform other geeks about innovations in technology that might interest them. This spawned an immense field of geek celebrities, such as Robert Scoble, Michael Arrington, Nick Denton and a host of others, and produced some real winners in terms of new media companies, like TechCrunch, Gawker, and thousands of specialized blogs. Tech media is also producing hybrid news and information models, like Duncan Riley’s The Inquistr, an eclectic blend of news that shouts “relevance” to its audience. The Inquistr includes sports stories, celebrity gossip and other mainstream items, which is to say that it crosses over into more of a mass media model with a proclivity towards technology.

News about technology now impacts people far beyond its original intent. And as we watch device after device and technology after technology cross the magical 50% threshold in terms of consumer adoption, it’s crystal clear that the demand for this kind of news and information is headed up, up, up. Do I buy from Apple or Microsoft? Is the iPad worth Apple’s restrictions? And what about my smartphone? What to believe, is the issue, and, even more importantly, who to believe.

Technology is a beat that moves with the speed of light, leaving magazines that used to own the niche struggling in the collective dust of online organizations that are nimble, fleet-of-foot, flexible and adaptive. Even its TV commercials emphasize the point that today’s state-of-the-art is tomorrow’s relic. And then there’s the money involved. Telecoms spend a fortune trying to hook customers into this contract or that one, because so much is at stake. Cable and satellite TV companies are on edge, as TV is now delivered “over the top” (OTT) directly to consumers. News is available at the fingertips of anybody, and traditional media companies are on the wrong end of innovation.

This has all led to what I view as an industrywide ignorance about what’s taking place, and this is fatal in terms of delivering news and information that’s relevant to people. What’s relevant? Technology! And yet, we don’t consider it to be our task. This has to stop, because there really is a lot at stake for readers and viewers and potential readers and viewers in this arena.

What kinds of HDTVs, for example, do TV station engineers use and why? Don’t you think that knowledge might be something that those shopping for HDTVs might want to know? What about cameras, etc? My colleague, Ken Elmore, produces a weekly segment for our newsletter called “Tools of the Trade,” and every week I say to myself, you know, everyday people would be interested in this, too.

Why are we so silent about a beat that impacts so many people in so many ways? I think it’s because we’re smack dab in the middle of it. We’re being disrupted by it, and our need to play defense blinds us from the common sense we need to aggressively go after this kind of news and information. We need to spend time studying the comments of stories posted in tech media, or spend a day just looking at comments of Robert Scoble’s massive following on Google+.

The lions of the tech industry — people like Steve Jobs of Apple, Mark Zuckerberg of Facebook, or Sergey Brin and Larry Page of Google — make enormous impact whenever they open their mouths, and yet I’d wager you’d find that most people in a typical newsroom don’t know who they are. New product launchings are BIG news, and covered by tech media with the same enthusiasm and resources of a Presidential news conference. And rightly so!

Where are we during these events? We’re getting video of the traffic accident up the street or interviewing some poor victim of a horrible tragedy somewhere else. Why? We ignore what’s important to people in the name of doing things as we’ve always done them. This makes no sense.

If you want your local media company to find relevance with the people you hope to serve, you’re going to have to start viewing their lives from their perspective and not your own. Technology is THE story today, so much so that many very smart people are calling this “the second Gutenberg wave” or something similar. Imagine that? It’s an actual turning point in the history of the West, and we’re nowhere to be found in covering it while it’s actually happening.

Gutenberg got a similar treatment back in the 15th Century from the Roman Catholic Church, because only THEY could publish the Bible. Wouldn’t you know that an upstart group of people would actually USE Gutenberg’s invention to swat such nonsense into reality. The same thing is happening today, only we have the chance to be smart about it rather than end up in the waste heap of what’s left behind.

Technology IS the news in the 21st Century. Please. Jump in with both feet.

Police and cameras on a collision course

the tools of the peopleThe inevitable conflict between people with cameras and people in authority is heating up, and news organizations need to be doing more than just paying attention. This is one of those sticky issues between the personal media revolution and traditional media, because one’s perspective on the matter determines where you stand. If you’re a “member of the press,” you enjoy certain freedoms at crime scenes, etc., and your concern about the rights of everyday citizens is limited to whether their pictures or video are of sufficient interest to warrant insertion in your own work. If you’re an everyday Joe with a camera, your interest is more self-driven, but both groups are heading for a showdown with authority sooner or later.

The real sore spot is when that which is being photographed is authority operating outside their authority, as in the case of overzealous cops beating the crap out of somebody. You can apparently take all the pictures you want on a public street, unless the subject in the viewfinder makes law enforcement look bad.

In an utterly chilling report from independent news source Alternet.org, reporter Rania Khalek writes: “More and more people use their smartphones to record police misconduct. But laws against wiretapping are being used to intimidate and stop them.” If the public is the new media (I’ll get to that in a minute), then our culture has a serious problem on its hands.

One would think the fear of videographers on every block would be a powerful deterrent to police misconduct. However, legislatures are not taking this newfound power against police abuse lightly. In at least three states, it is illegal to record any on-duty police officer, even if the encounter involves you and may be necessary to your defense, and even if the recording is on a public street where no expectation of privacy exists. The legal justification is usually based on the warped interpretation of existing wiretapping or eavesdropping laws with statutes against obstructing law enforcement sometimes cited.

Illinois, Massachusetts and Maryland are among the 12 states where all parties must consent for a recording to be legal. Since the police do not consent, the camera-wielder can be arrested and charged with a felony.

…The most pernicious prosecutions to date have taken place in Illinois, where the sentence for recording a police officer is considered a class 1 felony — on par with a rape charge — and can land a person behind bars for more than a decade.

These cases are, of course, thrown out of court, but that hasn’t stopped the arrests. Police have argued that they need protection from all these cameras, because it might inhibit officers from doing their jobs in the field (here, here, here).

Khalek’s article is worth reading, because it references many current and past cases and reveals a growing tendency on the part of police in several locations to confiscate the cameras and phones of onlookers in the name of seizing evidence.

Narces Benoit's videoIn Miami Beach on Memorial Day weekend, 12 cops sprayed Raymond Herisse’s car with 100 bullets, killing him. Herisse was a career criminal who police say tried to run over officers with his car. The police then seized and destroyed cameras and phones. One man, Narces Benoit, removed the SIM card from his phone and put it in his mouth. When his footage was later aired by CNN, police were caught in their lies about what went down.

CNN is an interested party in all of this, because of the huge success of its iReport unit. In a recent interview with Beet.tv, Lila King, Participation Director at CNN Digital and longtime head of iReport noted that contributions of citizen reporters have become “core of he the way we tell big, breaking stories.” iReport has 800,000 citizen reporters around the world, but those in the U.S. face ridiculous charges, if they cross the acceptable line with local law enforcement.

And, of course, citizen journalists aren’t the only ones subject to the overzealous behavior of cops. Last Friday in New York, Suffolk County Police arrested a freelance news photographeron obstruction charges when he refused to stop video taping police. Police say the charges will be dropped, but the point is that, again, legal authority was used to inhibit the gathering of news, and this must concern us all.

This issue is only going to get worse, and ultimately, it’ll be up to Congress and the courts to figure it all out. The law of unintended consequences is waiting in the wings, however, as governments try to press their need for authority over this in public. The First Amendment is the “first” for a reason, and in the age of its writing, it protected those who bought ink by the barrel and those who printed their pamphlets any way they could.

We’ve entered a new age, the depth and reality of which is being revealed more and more with each passing day. People with cameras will take pictures, and the truth is we NEED them to be taking pictures. Yes, there needs to be a few rules. Yes, there are privacy issues. Yes, authorities need to be able to do their jobs. In the end, however, there’s simply too much at stake for all this to play out without the input of professional media companies. Here are some thoughts about what we can do.

  • Each company needs to make a quality decision about whether the rights of citizens to photograph or take videos at news scenes is something we wish to support. Assuming the answer is “yes,” then we must get involved, in the courts by filing friend-of-the-court briefs and at the legislative level, both locally and nationally.
  • Local media properties would be smart to be proactive in the matter. Have meetings with local officials to determine their wants and needs and encourage their participation BEFORE it becomes a problem in your market.
  • Involve the public in the effort and solicit their participation through social media or otherwise.
  • Own the story. This is something that impacts anybody with a smartphone. What ARE their rights? If we want their pictures and their videos, we need to make sure we’re publicly supporting their actions.

In this country, the right to report news isn’t reserved only for élite professional organizations, despite the reality that we’ve operated that way for a long time. We want and need to stay as far away from “licensing” as possible, for who then would report on those providing the licenses? Times have changed, and there’s no going back. The best we can do is adapt, and in this issue, that means getting involved.