If May's NATO Summit in Chicago is any indication, journalists covering events outside the national political conventions in Tampa, Fla., and Charlotte, N.C., later this summer can expect that everyone--mainstream media, bloggers, citizen journalists, protesters, and bystanders--will have a camera of one kind or another. With the widespread proliferation of cellphone cameras, capable of recording high-quality images along with audio and video, it seemed like everybody was documenting everything and everyone.
In Illinois, there was heightened concern that police would be enforcing the state's Eavesdropping Act, which criminalizes (with a possible sentence of 15 years in jail) audio recording of police officers performing official duties in a public place without their consent. Of the three states that prohibit recording even where there is no reasonable expectation of privacy, Massachusetts and Oregon limit that restriction only to surreptitious recording. The Illinois law makes no such distinction between open and obvious versus secret recordings. In the case of ACLU v. Alvarez, the U.S. Court of Appeals for the Seventh Circuit found the law to be unconstitutional only days before the start of the summit.
That opinion comports with the 2011 First Circuit ruling in Glik v. Cunniffe that individuals possess "a constitutionally protected right to videotape police carrying out their duties." In 2000, the Eleventh Circuit (which is controlling in Florida) also recognized a "First Amendment right ... to photograph or videotape police conduct" in the case of Smith v. Cumming. The law in the Fourth Circuit (which is controlling in North Carolina) is less settled, according to a 2009 one-page, unpublished per curium conclusory opinion in Szymecki v. Houck, that the "right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct."
The right to observe and record police officers performing their duties in a public place is a recognized form of free speech through which the press and the public may gather and disseminate information on matters of public concern. First Amendment protections regarding such activity, while not absolute, may only be limited by reasonable time, place, and manner, or TPM, restrictions, the courts ruled in Glik and Smith.
But the "reasonableness" of a TPM restriction is often in the eyes of the beholder. Police issuing an order to disperse may expect everyone including those with cameras to leave the area while journalists may believe that moving back or out of the way constitutes compliance.
Both Tampa, which will host Republicans August 27-30, and Charlotte, which will host Democrats September 3-6, have established security zones around their respective convention centers. Those ordinances also ban a long list of items deemed to be potential weapons, so journalists who might come prepared with gas masks may find they are violating the new restrictions by carrying one. Also prohibited are "sticks, poles, ladders, monopods, bipods, and tripods." The cities have also established "free speech zones," where permitted marches may take place and speakers may address the public. It is also important to note that many of the streets in Charlotte that appear to be public are actually privately owned by many of the banks in that city, which may further complicate the right to record.
Another concern will be the enforcement of H.R. 347 also known as "The Federal Restricted Buildings and Grounds Improvement Act of 2011," which was signed into law in March, making it a federal offense to cause a disturbance at certain events. More specifically, anyone who trespasses on specified property or at times and locations "so restricted in conjunction with an event designated as a special event of national significance" may be prosecuted and subject to a fine or imprisonment or both. Both conventions have been designated a "National Special Security Event" by the Department of Homeland Security.
Under this "trespass bill" anyone "knowingly" entering a restricted area under Secret Service control who "engages in disorderly or disruptive conduct" or "who, with the intent to impede or disrupt the orderly conduct of government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or knowingly engages in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so, shall be punished" accordingly. The bill also creates a floating bubble of protection around the president and other dignitaries, so although those covering the protests may be outside of the designated zones, they may still fall under the ambit of the law.
Police in Chicago exercised considerable restraint in allowing protesters to move into non-designated areas and did not interfere with non-permitted marches. The Chicago police also did not distinguish between credentialed and non-credentialed journalists when allowing access to most public places and, except for arresting a Getty photographer, did not interfere with those taking pictures, recording video, or livestreaming events. Given that command staff from both the Tampa and Charlotte-Mecklenburg police departments were present in Chicago to observe, it can only be hoped that they will take the same reasonable approach in dealing with these issues.