By Tom White

In much of the United States, we are fortunate to have a professional police force.  They are the visible symbol of the social contract, and the most immediate reason—after the respect of our fellow citizens—why we can walk down the street with twenty or a hundred dollars and expect to make it to the other end untouched.  The police force of any Democratic society is one of the foremost defenders of the liberty of the members of that society.

But when we grant to any individual the power to act for the state, we create the risk that the individual will substitute her own judgment for that of society.  Lawyers and law students see this most obviously in Constitutional Law: the history of Constitutional Law is that of great jurists striving to decide when their own judgment must change the meaning of our centuries-old Constitution—and when they lack the right to make the change.  But much of America, unfamiliar with Justice Scalia’s passionate attacks on non-originalist jurisprudence, sees a far more crude form of the judge’s dilemma through voyeuristic videos of questionable police activity.

In 2006, a student studying in the UCLA library refused to show his identification to the police.  They insisted that he leave, and tased him when he did not comply quickly enough.  A crowd gathered as he screamed and they tased, and as he slowly left the library, a student surreptitiously recorded parts of the encounter which was later viewed on Youtube nearly a million times.  The student sued and ultimately settled for $220,000 and the chance to continue his education.

In 2007, Senator John Kerry was answering questions at a Constitution Day forum at the University of Florida when a student, tired of listening to Senator Kerry and frustrated that the Senator would answer only one more question and would not get to answer his, allegedly took a microphone in his hand and started shouting.  After some back and forth he was allowed to ask his question on camera, it turned out to be fairly absurd and convoluted, and after more than a minute his microphone was disconnected.  Two University of Florida police officers attempted to escort the student away and he struggled.  As Senator Kerry told them to let him answer the student’s question, they became involved in a struggle with the student, eventually using a Taser to subdue him.  One Youtube posting of the video has been watched more than five million times. http://www.youtube.com/watch?v=6bVa6jn4rpE

 At the G20 Summit in Toronto this summer, Toronto Police Constable Adams Josephs likewise found himself on Camera.  After the economic troubles of recent times, more people are out of work.  More people have time to protest and have anger which can be directed easily, in this case, toward the richest countries in the world.  We can put men on the moon but we cannot feed, clothe, and house every child on our own shores.  The protests turned violent.  Radical demonstrators clashed with riot police and lit police cruisers on fire in downtown Toronto. 

But it is not the protests which cause controversy—protestors who become violent become no more than vandals.  The controversy comes nearby, at a peaceful place where cameras watched, as a twenty-year-old girl, Courtney Winkels, blew bubbles across a police barrier, smiling.  One officer smiled back cheerfully, clearly not minding the bubbles.  Another—Constable Adams Josephs—threatened her with assault charges. Later we see her taken away in a paddywagon, though no explanation is given as to whether the two events are related. 

Because of the Camera, there was a controversy.  Political cartoons dubbing Constable Joseph “Officer Bubbles” emerged.  The “Streisand effect,” a phenomenon whereby attempts to censor material make it instantly popular, further amplified the story when Constable Josephs sued Youtube and many of the people who commented on his video in the Ontario Superior Court of Justice. 

In each of these cases, the videos started a public debate on the legitimacy of the police actions.  Clearly there is some value in public debate on the legitimacy of police action—such debates are intrinsically debates about rights.  But recordings also may tell only a part of the story: what happens before the camera turns on, or after it turns off?  Does the camera distort the truth more than it reveals?  Does it discourage law enforcement from engaging in legitimate policing activities?

What do you think, readers?  Are recordings of police activity, whether by the police themselves, the media, or private citizens, a menace to law enforcement?  Or are they important political speech?

Arguments for and against the recording of public officials, including police officers, will be considered in my next Blog entry for the American Criminal Law Review.