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 elite 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.


  1. Ron Stitt says:

    Not sure why the First Amendment even comes into it. It’s my understanding that anyone in a public space can be photographed as long as they would have no reasonable expectation of privacy (cameras or no cameras). What would be the basis of police officers being exempt from that criteria anyway?

  2. Terry –

    nice one. Always pleasure to read your thoughts.


  3. …..issue terry appeals really for all of us.great posting and always follow your thoughts

  4. I think you might be reading to much into this decision. The shift from traditional news to more citizen centric has been in process for a long time, driven largely be technology and the ubiquitous availability of camers.

    You claim that “If press freedom applies to everybody, then that agency cannot restrict access to only those who work for a news organization.” This is factually invalid, the decision is q fascinating read, but some reasonable time and place restrictions are allowed and for private companies this is not an issue since your rights are limited there to begin with. The cannot restrict access to the information, that is true, but at the same time they certainly could give preference to credentialed media until the room is full.

    This decision simply clarifies what SHOLD have been a DUH moment for the cops. You are in public you have no expectation of privacy. This is PRECISELY the argument used for putting cameras up by cities.. It also makes clear that yhey can’t twist wiretapping laws to fit what they want it to say. In addition to ALL that we as citizens have a right to monitor our government officials. Everything in this decision is simple acknoledgement of things that were already evident to anyone with two brain cells..


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