Arkansas is poised to be the first state in the Union to establish a statutory right to take photographs in public. Given the increasing prevalence and use of smart phones (with videorecording capability) in American life, this issue’s importance continues to grow. Earlier today, the state House passed the final version of
HB 1669 (which had previously been passed by the state Senate), sending it to Governor Hutchinson’s desk for his signature. State Rep. Richard Womack sponsored the measure and worked with Advance Arkansas Institute staff to pass the bill; the policy was originally proposed in our Action Plan for Arkansas. The right to take photographs (and, more specifically, the right to record public officials as they perform their official duties) is a right that – as a theoretical matter – many believe already to exist (given that such a right is regularly recognized by federal appellate courts, as in, for instance, the First, Seventh, Ninth, and Eleventh Circuits); regrettably, others will view the legislative recognition of that right as trivial or unimportant. Nonetheless, it is a fact that government actors regularly seize smart phones and attempt to destroy the records in them, even without suspicion of a crime. Such seizure typically occurs when smart phones are used to document bad behavior by government actors. The importance of this right is not hypothetical. Even though the federal Department of Justice has promulgated a set of rules which lay out the First Amendment rights of photographers, there are a mountain of anecdotes nationally which suggest that government actors regularly ignore basic First Amendment rights in this area. Here are just a few from Arkansas:
A few years ago, Maumelle Monitor newspaper photographer Bill Lawson was taking pictures of a chimney fire in central Arkansas. A state policeman on the scene, Trooper Tom Weindruch, became angered with Lawson and, handcuffing him, arrested him for “obstructing government operations.” That officer later argued that the camera flash made him fear for his safety, causing him to arrest Lawson immediately. Outcomes like this are no surprise if it is acceptable for the government to face little or no consequences for abusing its authority. (In fact, the trooper who arrested Lawson for documenting the house fire was punished only by having to do office work instead of field work for a short time.) It is hard for a reasonable person to conclude Lawson was at fault; presumably recognizing this, the case prosecutor asked the presiding judge to dismiss the matter in an effort to avoid future complications, which the judge did. Such a dismissal did not cure the central problem, however, which is that there is no real incentive for government to avoid trampling on its citizens’ rights, and no real consequence when government does so.
A similarly disturbing event took place in 2011, when Sheriff Buck Foley of Fulton County pushed away two video cameras that were recording a Quorum Court meeting, so as to prevent citizens from recording images of the Quorum Court’s deliberations. This followed a 6-3 vote by Quorum Court members to ban video-recording devices from recording Fulton County Quorum Court meetings. These actions suggest a systemic ignorance of the fundamental First Amendment rights of American citizens to record public events.
Regrettably, in the closing days of the 2013 session, Attorney General Dustin McDaniel successfully prevented a bill similar to HB 1669 that was aimed at protecting the right to record public events. The bill’s sponsor that year, Rep. John Walker, had once been arrested simply for standing in public and observing the Pine Bluff police in action from “a considerable distance.” Ultimately, the bill’s progress ended in the Senate’s State Agencies Committee because of the actions of McDaniel’s army of attorneys and those of several committee members who refused to afford the bill’s sponsor, Rep. Walker, the elementary courtesy of allowing him to amend his own bill with small technical changes. One of McDaniel’s staff lawyers explained to the Senate committee that incidents of camera-snatching by public officials don’t happen often enough to worry about; coincidentally, the next day’s newspapers described the lawsuit of a Fort Smith man, Braden Purcell, against the Sebastian County Sheriff – a lawsuit that appeared to be based largely on camera-snatching by public officials, and one which ultimately cost taxpayers more than $40,000. Purcell was arrested while walking in his neighborhood, shortly after he had used his smart phone to photograph some deputies executing a search warrant. On a personal note, I will never forget the behavior of McDaniel’s staff lawyers in that committee, who supplied several flimsy and pretextual reasons to oppose that bill in their testimony; when I proposed a one-sentence amendment that would resolve their purported concerns, they explained to me privately that McDaniel was going to oppose the bill, no matter what its substance was. Regrettably, that kind of strange and wrongheaded posture was typical of McDaniel’s tenure as attorney general.
At the core of HB 1669 is a recognition that the State of Arkansas is liable for the bad acts of its employees. One might ask: because the First Amendment rights of citizens are generally vindicated by courts, is there really a need for this legislation? The answer is yes; that answer is demonstrated by an eyebrow-raising ruling by a federal judge in another state. Read this story about a college student in Philadelphia who was arrested because he was photographing an encounter between a police officer and a homeless woman in a public park. The judge in that case issued a pre-trial ruling that the courts in his circuit had not “clearly established” a right to photograph public officials. “Whether the Third Circuit will eventually decide to follow what appears to be a growing trend in other circuits to recognize a First Amendment right to observe and record police activity is, of course, not for this court to decide, even if there are good policy reasons … [to] adopt that change,” wrote U.S. District Judge William H. Yohn Jr. It is far from obvious to me what prevented Judge Yohn in that case from recognizing the importance of First Amendment liberties that have been established by other courts. (If you’re curious about how the bill actually works, a little more detail is necessary. The bill simply protects the use of cameras, both in places that are open to the public as well as on private property where the camera user has a right to be. It also bars the deletion or destruction of information in such cameras, as well as the seizure of such cameras absent exigent circumstances. The bill’s protection does not extend to several named special circumstances; for instance, if the photography could reasonably be expected to lead to copyright infringement, it isn’t protected. If you’re curious about the details of the bill, I recommend that you read HB 1669. ) The larger issue here is that government actors will sometimes overlook constitutional liberties, and sometimes even federal judges will do the same. When these things happen, it is appropriate and necessary for legislatures to step in and stand up for the rights of everyday citizens. I applaud the Arkansas General Assembly for doing the right thing.
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