Is It a Prior Restraint for Police to Delete Video of Their Conduct?

A pedicab driver was arrested in D.C. recently for pretending to record police arresting one of his passengers. He wasn’t actually filming anything – apparently he wasn’t even sure how to operate his new camera.

One would think that with all the attention this issue has received lately, we’d have seen a decrease in incidents of police arresting those filming their actions. But police officers continue to arrest journalists and other citizens for lawfully recording incidents of police activity. It happened to CMLP friend Carlos Miller (for the third time) while he was covering an Occupy Miami evacuation in February. And, as Carlos reported, to a San Diego videographer in January. And to others in Boston, Austin, and Memphis. And many other places.

It’s not like the right to record the police is a big secret anymore. The Obama Administration has stated that Baltimore city police officers infringed on an individual’s (non-journalist) First, Fourth, and Fourteenth Amendment rights when they seized his cell phone and deleted its contents (he was recording the officers arresting his friend). An Oregon jury came to the same conclusion regarding the seizure of an environmentalist’s video camera. And the First Circuit unanimously ruled in Glik v. Cunniffe that filming officers in a public space is a clearly established First Amendment right. The New York police should also understand that they are not to interfere with lawful recording: Their patrolmen’s guide explicitly states that “[m]embers of the media will not be arrested for criminal trespass unless an owner expressly indicates … that the press is not to be permitted.”

And the people who have had run-ins with the police are beginning to fight back. Simon Glik filed suit against Boston police, which resulted in the First Circuit opinion mentioned above and a $170,000 settlement with the City of Boston. Videographer Phil Datz just sued the Suffolk County (NY) Police Department for a similar incident. Carlos Miller is also fighting his most recent arrest.

Most of the lawsuits that have arisen out of these incidents are based on 42 U.S.C. § 1983, which grants individuals the right to relief when actors, acting pursuant to state authority, violate the person’s constitutional rights. (The Supreme Court established a similar cause of action against federal actors in Bivens v. Six Unknown Named Agents, 403 U.S. 338 (1971).) The First Amendment grants the right to film events occurring in a public space, as some Courts of Appeals, such as the First, Ninth and Eleventh Circuits, recognize. The Fourth Amendment protects individuals’ private property (like a camera or its contents) from seizure without a warrant or probable cause. The Fourteenth Amendment requires due process before state and local officials can seize and destroy someone’s property.

What the courts and the administration haven’t addressed is whether a police offer who deletes video commits a separate violation of the First Amendment by imposing a prior restraint on distribution of the video. I would argue that deleting content from a recording device does indeed constitute a prior restraint on speech.

What is a Prior Restraint?

Prior restraint is an elusive thing. Although the Supreme Court has called it “the most serious and least tolerable infringement on First Amendment rights,” Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976), it has not set the parameters for what constitutes a prior restraint. Alexander v. United States, quoting Melville Nimmer, offers one useful definition: “The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” 509 U.S. 544, 550 (1990).

This appears to put prior restraints into two categories: administrative orders and judicial orders. The Court’s jurisprudence generally follows this categorization, addressing cases in which courts issue injunctions (judicial orders), or in which administrative bodies require a license in order for speech to occur (administrative orders). Police officers’ recent habit of deleting video recordings on their own initiative doesn’t fit neatly into either of these categories.

I haven’t been able to find prior restraint case law that deals with action by state agents that was not specifically authorized or directed by a court or administrative body. But the Supreme Court has noted that “seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where ... there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Heller v. New York, 413 U.S. 483, 492 (1973). In the news reporting context, this strongly indicates that if a state actor were to seize all copies of a specific newspaper, preventing them from being distributed, it would clearly be a prior restraint. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 950 (3d ed. 2006). Deleting a video recording directly from the recording device appears to be a similar act of state censorship.

What Can We Learn from Obscenity?

When you think of obscenity and the Supreme Court, videos documenting incidents of arrest probably don’t jump to mind. The obscenity cases involve publications that allegedly compromise the morality of our society—lewd novels, pornographic magazines, and the like.

But cases dealing with the seizure of material claimed to be obscene have a lot in common with these situations in which police confiscate recording devices and delete their content. Here are a few examples:

Marcus v. Search Warrant of Property at 104 East Tenth Street, 367 U.S. 717 (1961): A Missouri statute authorized the search and seizure of allegedly obscene publications if police could provide enough probable cause to support a search warrant for the seizure. Although the property owner was not entitled to a pre-seizure hearing, the judge issuing the warrant was required to set a hearing date after the seizure, to determine whether the material was actually obscene. If so, the judge would order it publicly destroyed; if not, the materials would be returned to their owner.

A Missouri court subsequently issued a warrant authorizing the search and seizure of materials at a distributor’s place of business and five newsstands. The warrant did not specify which publications were to be seized, and the officer executing the warrant used their own discretion to confiscate approximately 11,000 copies of 280 publications. The Court held that the seizure was unconstitutional, because it prevented the distribution of the materials at issue prior to any judicial determination of whether they were obscene and therefore lacked the due process required to safeguard materials protected under the First Amendment.

Quantity of Copies of Books v. Kansas, 375 U.S. 206 (1964): A similar statute in Kansas authorized the seizure of allegedly obscene publications without a pre-seizure hearing as to their obscenity. A post-seizure hearing would be held to determine whether the publications were actually obscene. If so, they would be destroyed; if not, they would be returned to their owner.

Here, after an extended ex parte hearing, a judge issued a valid search warrant for specific publications at P-K News Service. Although the executive officers only found certain of the publications when they executed the warrant, they seized all copies of each (1,715 books total). A plurality of the Court found that the procedure violated the First Amendment, because P-K News Service was never given an opportunity for an adversary hearing regarding the publications in question.

United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971): When the claimant was returning from Europe, customs officials seized thirty-seven photographs from his luggage as obscene pursuant to the Tariff Act of 1930. A US attorney instituted forfeiture proceedings in a US district court approximately two weeks after the seizure. The claimant challenged the constitutionality of the statute as applied to him and demanded that a court issue an injunction in his favor. The lower court found the statute invalid on procedural grounds and ordered the injunction.

The Supreme Court reversed finding that the claimant’s due process rights were not violated, because the government timely initiated adversarial hearings to determine whether the materials should be forfeited. The Court acknowledged, however, that unduly long administrative procedures or the lack of an opportunity to be heard had been held to invalidate statutes and administrative determinations in previous cases.

From Obscenity to Recording the Police

In the obscenity cases, at least, there was a valid question as to whether the publications at issue were constitutionally protected. The Supreme Court held in Roth v. United States, 354 U.S. 476 (1957), that obscenity falls outside the safeguards of the First Amendment. In the case of Carlos Miller (and many others whose content has been deleted), it’s clear that the content itself is protected by the First Amendment. Since the police could not support an argument that the content is unprotected, the individuals shouldn’t even bear the burden of appearing at hearing.

This, of course, is the big difference between obscenity cases and deletion of lawful material. Where content is allegedly criminal and of dubious constitutional value, it may be necessary to seize and preserve one copy of a work to use as evidence. Here, there’s no need to seize the content for evidence, because the constitutional protection is unquestioned and no crime has been committed.

There is also a strong argument that mere seizure of the only existing copy of such a video itself constitutes a prior restraint, even if the police do not delete the video. If the police officers’ intent is to prevent distribution, as opposed to preserving content for evidentiary purposes, that act may be unconstitutional. The Supreme Court has stated that:

Seizing a film then being exhibited to the general public presents essentially the same restraint on expression as the seizure of all the books in a bookstore. Such precipitate action by a police officer, without the authority of a constitutionally sufficient warrant, is plainly a form of prior restraint[.]

Roaden v. Kentucky, 413 U.S. 496, 504 (1973). Nor is it a defense that publication might only be delayed; Justice Black, in particular, believed that delays in publication are as bad as permanent bans. N.Y. Times Co. v. United States, 403 U.S. 713, 714-15 (1971) (Black, J., concurring).

If there’s one thing I’ve learned in law school, it’s that piling on is a very useful strategy in litigation. So here’s one more cause of action to add to your list.

Conclusion

Deleting the only copy of a video before it is distributed is a permanent harm that prevents publication of content protected by the First Amendment. As Justice Brennan wrote in Marcus v. Search Warrant: “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.” The doctrine of prior restraint was established to safeguard against government censorship of information. Seizing and deleting lawfully recorded video is exactly the type of suppression barred by the doctrine.

Lauren Campbell is a CMLP intern and a 3L at Boston College Law School. 

(Image of Carlos Miller posing with statue of Thomas Jefferson wearing a "Got Liberty?" hat used courtesy of Jeff Hermes.)

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