Consider another form of free speech — taking pictures or videotaping local police while on duty. With camera phones now common, and with the specter of Rodney King still lurking, a number of local jurisdictions have taken to arresting, harassing or confiscating the cameras of those who attempt to film them, actions which legal scholars and the U.S. Justice Department argue violate key parts of the Bill of Rights.
In March of this year, the U.S. Department of Justice filed two letters with Maryland courts supporting the rights of citizens to film police officers. "The United States urges the Court to find that both the First and Fourth Amendments protect an individual who peacefully photographs police activity on a public street," said one letter.
"It's pretty well established in the courts that people have a First Amendment right, and quite possibly a due process right, to record police, especially in public settings," said Glenn Reynolds, a law professor at the University of Tennessee. "Police, however, don't seem to be going along."
This week in Hawthorne, Calif., for example, police handcuffed a man after attempting to film them from a public street during a burglary call. As documented in still photos shot by another observer, the police handcuffed the man, even though he had already retreated to his car. His dog then jumped out of the car to defend his master, whereupon the officers shot the dog dead.
Similar cases have occurred with frequency around the country.
"We should be able to get some bright-line rules so it's not all up to the discretion of the officers," said Walter Olson, a senior fellow at the libertarian Cato Institute, "if the person filming is not suspected of a crime and is not a threat to the safety of the officers."
Search and seizure
If snooping on police is dicey, how about cops snooping on you? The Supreme Court issued four search and seizure decisions this term, according to Olson.
"Here we are 200 years later, and a lot of big, interesting questions still haven't been settled on what the Bill of Rights says about search and seizures," Olson said.
In three cases, the court sided with the defendant and in one big case, the court sided with the state. This was the DNA swab case, where the state of Maryland was capturing DNA from those arrested, even if they were not charged with a crime.
"Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason," wrote Justice Antonin Scalia in a sharp dissent. Kennedy joined three of the liberal justices in an unusual dissenting alliance.
Olson points to a deeper problem on the DNA question, still well below the radar. Many local jurisdictions are collecting DNA on an ongoing basis, he said, including collecting samples from drinking cups and from witnesses and from drinking cups.
"They are building and building and building an identification database in the expectation that this will help them solve future crimes," Olson said. "We really need a debate about that before the inevitable abuses."
In short, Olson suggests, while the Bill of Rights grants U.S. citizens — on paper and usually in practice — far more extensive protections of individual liberty, those protections are often in flux and their implementation is often uneven.
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