Police officer vows to defy First Amendment

Last fall, the New Haven Police Department came under criticism after officers were caught harassing people trying to video-record them while they were making arrests during a crackdown on rowdy bars. In one instance, according to an internal report, a commanding officer went so far as to confiscate an iPhone and order another officer to erase the video.

Police Chief Frank Limon, in response, said publicly that citizens have a right to video-record the police as long as they don’t interfere. Officers are attending training sessions reinforcing that message. And Limon recently issued a general order putting it into writing.

So what do you do when an officer — posting pseudonymously in the comments section of the New Haven Independent, a five-year-old non-profit news site — makes it clear that he’s going to keep doing things his way?

It’s an interesting question, and one with no easy answer.

On March 3, Independent editor and publisher Paul Bass covered a training session led by Assistant Chief Tobin Hensgen. Nineteen of the department’s more than 400 officers were there. Presumably all of them will be cycled through at some point.

As it happened, I was on one of my reporting trips to New Haven, so I was there. Among other things, I got to see another dimension to the controversy: Hensgen showed a video clip of a handgun convincingly disguised as a cellphone. I can certainly understand why an officer would want to inspect a cellphone if someone were aiming it at him at a crime scene.

Coincidentally, later that afternoon Chief Limon held a news conference at police headquarters to respond to two investigations into incidents of police harassing cellphone-wielding bystanders. (I was on hand for that as well, tagging along with reporter Thomas MacMillan.) Former assistant chief Ariel Melendez was at the center of both incidents. He retired in January with a pension of $124,500.

On Saturday, a commenter who identified himself only as “J” (scroll down) wrote that he was at the training session, and that he would insist on inspecting a cellphone at the scene because of the possibility that it could be a weapon. So far, so good. Then he added this:

Also if I am conducting an investigation involving a juvenile and I find that you are filming I will ask you to stop. If you do not comply I will take your phone and place it into evidence.  The identity and image of a juvenile will be protected. Of course if you see a officer abusing a juvenile or anyone for that matter and film it this is a different story.

Bass responded in an “Editor’s Note”:

I believe you will be breaking the law in that latter case. If you do that to us, we will pursue all legal avenues to make sure you are punished. However, I agree with you that we shouldn’t film the juvenile; that is our responsibility. However again, we do feel comfortable filming the scene but leaving the juvenile’s face and identity out of it.

“J” posted again, making it clear that he understood the law, but was going to do what he thought was right regardless:

No, if I am dealing with a juvenile while conducting an investigation then the entire well-being of that child is MY responsibility, not the individual who is filming.

I completely understand that you or anyone would pursue me or any other officer legally, unfortunately that comes with this job.

If I am to be pursued legally my report will show my justification for what I have done and I will have to play the odds. I can say that anything regarding a child plays heavily on the feelings of all adults, so I would find it extremely hard for any court to find fault in what I did. I, however will sleep well knowing I did the right thing legally or not.

I guess we will agree to disagree.

Bass:

We are not disagreeing about what the law says. We are not disagreeing about what the policy is. We are disagreeing about whether you should follow the law; that’s your choice. In terms of protecting the juvenile — in the case of the Independent, we agree not to run the face of a juvenile being arrested. If another citizen or media outlet chooses to run a photo of juvenile in public causing trouble, the law is 100 percent clear that this is legal and permissible and that you are breaking the law if you try to prevent it.

There’s more, but that’s the gist of it. What’s at the heart of this dispute is a little-understood fact: that news organizations protect the identities of juveniles by custom, not as a matter of law. No one is legally prohibited from publishing the name of a juvenile charged with a crime — and, in fact, names often are published if the crime is notorious enough.

Nor do juvenile victims and witnesses enjoy any legal protections against having their identities revealed. Protecting their identities is a custom, and a good one. But making it a matter of law would violate the First Amendment’s guarantee of free speech and freedom of the press. The Supreme Court has on several occasions struck down laws that attempt to codify that custom.

What’s interesting about “J” is that he seems to be well aware of that, but doesn’t care. In part, he may be reacting to a legitimate concern about citizen journalism: though a news organization like the Independent isn’t going to publish the names of juveniles, there’s nothing to stop someone with a cellphone camera from posting a video to YouTube that clearly identifies underage suspects, victims and witnesses.

Under the Constitution, though, they have every right to do that. As the saying goes, “What part of ‘no law’ don’t you understand?”

17 thoughts on “Police officer vows to defy First Amendment

  1. C.E. Stead

    He seems to be saying that the Law is an Ass.

    If we can pass a rape shield law without violating the First amendment, why can we not pass a Juvenile Shield Law?

    1. Dan Kennedy

      @C.E.: Again, news organizations do not report the names of rape victims and suspected rape victims as a matter of custom. A law can prohibit authorities from releasing the name, but it can’t constitutionally prohibit the media from reporting it if it somehow falls into their hands.

  2. Mike LaBonte

    This is why I have the UStream button on the main screen of my phone. But while it streams video live to a server, I wish UStream would add the option of automatically making the video public if the connection is lost, or for some reason the person using the phone is unable to tap the confirmation button at the end of recording. Then my phone could be smashed and it may make no difference, depending on UStream’s policy regarding take down notices. As it stands you have to actively end the live transmission and tap a button to have it posted online. So close.

  3. Matt Kelly

    And then J will be hauled into federal court on a civil rights charge, and then he or his town will end up settling for $100,000. Wonderful use of taxpayer money, J. Serve and protect.

  4. Stephen Stein

    The more remarkable thing here (to me) is that J is not just saying he will not comply with the law, but that he will not comply with the orders of his superior.

    I wonder what his superior officer would say to this, but judging from J’s choice to remain pseudonymous, maybe I shouldn’t wonder.

    BTW, Dan, does this episode prompt a bit of reconsideration with respect to your real names policy? This is not an exchange that could have happened on this site.

    1. Dan Kennedy

      @Stephen: I always knew there were things I would lose by moving to a real-names policy. I think the gains outweigh them in terms of civility and accountability. But sure, stuff like Officer J.’s disobedience is why God created anonymous comments.

  5. David Streever

    Great analysis, Dan.

    I like your requirement of real names. I think it does improve the overall level of communication.

    I think it is worth pointing out, that while J could not express his concerns with this policy, nothing stops an anti-police commentator from creating a fictitious identity and writing similar comments on the NHI: for all we actually know, J is someone with an ax to grind against the police. I don’t think that is actually the case, but it is one more problem caused by allowing anonymous comments.

  6. L.K. Collins

    Steve Stein, you wanted my view?

    People have the right to videotape. Police have the right to stop based on sound cause.

    If there is an objection, then the police should be held to account…by the press, buy the court, by public opinion. If the police can’t overcome the objection, so be it. They get to pay the consequences for their actions.

    BTW, I highly favor citizen advisory boards that can act as ombudsmen for police forces.

  7. Stephen Stein

    Thanks, LK. The order sounded clear, though, even if the law is not. What’s going to happen to J if he prevents taping contrary tot he clear order of his superior?

  8. Two questions for Dan and commenters:

    1. What do you think of Paul Bass’s decision to weigh in with responses to J’s comments (in the form of an editor’s note appended parenthetically to J’s comments, rather than in the format of a reader comment)? One commenter on the NHI site says the editor is engaging in “facebook fighting,” and compares the editor’s comments to “threats” to file a civil rights lawsuit against the officer if he carries out the policy he advocates. Does “he who buys ink by the barrel” have the right to spill that ink even within the readers’ forum? Good idea? Bad idea?

    2. The only privacy policy I see on the site contains the editor’s statement, regarding reader comments, that “anonymity is fine” and “we allow anonymous posts.” It doesn’t provide any assurance that names or IP addresses won’t be revealed. If the editor decided to “expose” J by publishing his IP address, or perhaps even linking his IP address to prior posts that use a real name, would that be good crusading journalism: outing a police officer who vows to break the law? Or would it be a breach of readers’ trust? (Would your answer be different if the law in question involved limits on use of deadly force?)

    Sorry to sound like a law professor with these questions, but they are issues I frequently wonder about when advising media clients….

    1. Dan Kennedy

      @Rob: Thanks for weighing in. From what I’ve seen, it’s rare for Bass to use the comments section to talk back. By making it rare, he raises the stakes when he does choose to do it, and thereby perhaps calls more attention to what he’s saying than he intends. For an opposite example, consider yours truly: I’m always shooting my mouth off in the comments, so anything I say is no big deal. When journalists get involved in reader forums, they can help to advance the conversation. They can also seem petty and unable to refrain from having the last word. I think I’ve done both. The idea is not to take it personally, but that can be hard to do.

      As to your second point, I don’t think Bass has thought his policy through from a legal point of view. He says he won’t expose people’s identities, and I think people should take him at his word. If you say you’re not going to out people, then you don’t out them, period. (You and I have disagreed about that.) I can’t see Bass deciding to make an exception to that policy, but it would be a different matter if he — or any website operator, for that matter — received a subpoena to do so.

  9. Paul Bass

    I’d probably make an exception in cases of life and death.

    I think Rob raises great questions. In general my policy is to answer some direct questions people ask me about site policy or decisions; otherwise I like to let readers have the last word, since we have the first word. Dan’s right — occasionally when I feel a deep stake in a matter I’ll jump in. Maybe I shouldn’t have here.

  10. L.K. Collins

    Steve…what happens to J is what J gets to find out.

    Put another way. Put your hand in a fire, don’t be suprised when it begins to hurt…and don’t complain.

  11. Stephen Stein

    @Paul Bass – I think it’s great that you jumped into that discussion – it moved the topic along and the result was newsworthy.

    @Rob – I think the question of whether to do it as an “editor’s note” as opposed to a regular comment is quibbling, but it did look strange to me.

  12. Donna Morris

    @Rob: Since you directed your questions to commenters as well as Dan,

    (1) Since Paul Bass wrote the piece, it was entirely appropriate for him to engage with a commenter who registered defiance. Paul’s comments conveyed clarification of the law as well as his newspaper’s policy, a benefit to readers and commenters.

    I didn’t interpret a literal threat per se, but rather a strong declaration of the newspaper’s (and public’s) right and intention to pursue consequences “If you do that to us …”. Semantics perhaps, but a difference to me.

    By engaging with “J” in such a public, adversarial way, the New Haven Independent will probably experience retribution of one kind or another from members of the New Haven Police Department. The blue wall is powerful and virtually impenetrable.

    (2) Yes, it would be a breach of readers’ trust to voluntarily disclose identities. The issue would become more problematic if it involved limits on deadly force. Policy, ethics, personal judgment and conscience would then come into play, and depending upon the circumstances, the answer might be different.

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