Reason Magazine has an outstanding article today on the police (and other public officials) videotaping issue. The issue is whether private citizens have the right to videotape police and other public employees as they do their jobs. In this case, a reporter was jailed for taping the arrest of another reporter in a public meeting. I have not yet seen any reports that the reporter was disruptive, only that he had snapped a photo of the meeting.
First, let us stipulate that not just anyone anywhere for any reason can videotape someone else legitimately. If you videotape me busting some sick hip-hop moves* in a public place and then sell those videos, I suspect courts would find that you had violated my rights. This is why photographers and videographers must obtain model releases before selling images and movies of their subjects. If you actually do this, however, we may be able to work out a revenue-sharing deal.
Does this mean that anyone taking a photo must gain permission from anyone appearing in the photo? Not being an attorney, I cannot answer that question precisely. My understanding is that there are reasonable exceptions in cases where the subject’s image is not the central theme. For example, if I were to take a picture of the St. Louis Arch and you happen to be standing at the base, I doubt you have a case against me. Likewise if you have had one too many beers and managed to scale halfway up. Writing the incident up on this blog and posting your picture within is news and I understand that such recordings have special protection.
The line between legitimate and illegitimate taping is not precise in private cases, but we recognize that private citizens have at least some protection against being filmed unwillingly. The matter of public settings is quite different.
For one thing, it is no strain to imagine that, say, police have some measure of protection when not acting as public officials. I doubt many would defend a journalist’s right to film an off-duty officer mowing his/her lawn. When on the job, however, that officer is acting on behalf of citizens. Can there be a good reason not to film them?
One argument is that allowing such taping may make officers reticent to make those rapid decisions that can save their lives and ours. We certainly do not want officers second-guessing themselves when seconds count. Is this really an argument, though? The police already videotape themselves routinely while on the job. Can having a citizen do the same add any pressure that is not already there? I think the answer is no, and it would not matter if it did. When citizens are subject to the use of force by law enforcement, they have every right to make sure that they are not abused in the process.
Even weaker is the argument that public meetings should not be taped. I cannot think of any reason that citizens should not be able to record meetings in which their elected officials discuss public business. For obvious reasons, they should not be allowed to disrupt the meeting, but passive taping would seem to me legitimate in all cases. This is where the DC case cited above gets interesting.
As it turns out, a loophole may have made the arrest of the journalist technically defensible. The Interim Chairwoman, Dena Reed, had posted a notice that members of the public could not tape meetings because it was “disruptive.” The DC Taxicab Commission itself was responsible for providing tapes to the public, but private citizens could not do so. Reed was also acting as the Commission’s general counsel at the time, making it convenient to interpret the guidelines in her favor as chair.
Let’s cut to the chase. Public officials have ample opportunity to do mischief when they are not held accountable. In recent years, public meeting laws have shored up citizens’ power to enforce that accountability and public officials do not like it. Many would prefer to retain the illusion that they know best what is good for the community and would do it were it not for those pesky people who question their judgment and authority.
The sword of government is two-edged. Just as it can play an essential role in defending liberty, it can do much to thwart it. Videotaping of business done on behalf of citizens ensures that officials remember for whom they are working. It also requires them to ask of themselves whether what they are doing would pass the smell test. Knowing that they may show up on YouTube trying to pass a harmful or outright corrupt law may make them think twice. Anytime we can slow a politician down, we are headed in the right direction.
*The odds of catching me doing that are extremely low. Like maybe one in three or four trillion.