The Spokane City Council last week approved rules that will make it almost impossible for television crews embedded with law enforcement to broadcast what they film. Along the way, they ran roughshod over the First Amendment.
At a time when verifiable facts are labeled as “fake news,” this is exactly the sort of thing our nation’s founders worked so diligently to avoid. The council seems to think it can recognize “bona fide news organizations” as opposed to “reality-based police shows.” In Spokane, some news sources are more equal than others, especially if it means protecting the city’s reputation.
And our government, especially in today’s hyperpoliticized environment, has no place in making decisions about what is “bona fide news” and what isn’t.
Thomas Jefferson hated the media. Yet he also understood more than most the role it played in a well-informed democracy.
“Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter,” Jefferson wrote.
Jefferson knew open government doesn’t get to legislate what is considered “bona fide news organizations.”
A television show called “Live PD” sparked the heartburn. Think of it as “C.O.P.S.” but nearly in real time and with a greater social media engagement.
The show embeds with county deputies and Spokane Valley police. City police do not allow the show’s cameras, but officers sometimes are caught on film when multiple agencies respond to an incident.
Under the ordinance passed Monday, embedded camera crews operating inside the city must obtain a business license, $1 million of liability insurance and written consent from suspects before broadcasting. The show also must allow the Spokane Police Department to review footage before airing it. Those last two provisions would blow up the whole “Live” part of “Live PD.”
Backers of the new rules insist they want to protect residents’ personal privacy. “Many of the people featured on these reality TV programs are experiencing probably the worst day or night of their lives,” said Councilwoman Lori Kinnear, and they should give their consent before the encounter is broadcast.
The ordinance specifies that no one intoxicated, high or otherwise “mentally incapacitated” is capable of granting consent. A drunk person slurring through an interview with a cop – a popular scene on such shows – would be off-limits automatically.
Council members worry, too, that reality-based police shows air suspects of color disproportionately, creating a false impression of who is involved in police encounters and who is guilty.
That new law exempts “bona fide news organizations” from its burdensome requirements, and thereby treads onto a very slippery slope.
What “Live PD” does is not so different from CNN broadcasting live footage of police chasing a white Ford Bronco down the highway. The volume is greater, but not the content.
Little more than a decade ago, legal scholars tried to figure out whether citizen journalists and bloggers were “real journalists” like newspaper reporters. Turns out they are, even as they are of a different kind.
“I can see the censorship argument here,” said Councilman Mike Fagan, the lone member of the council to vote against the ordinance.
The First Amendment protects a free press in the United States specifically because government cannot be trusted to make decisions about what is and is not bona fide news. Once the government starts to make those calls, it controls the message, and the people no longer can hold officials accountable.
What these camera crews capture is not much more than anyone with a cellphone could film. The action typically is in a public place and the police are public officials. Where individuals think they have been injured or have a right to privacy, state law already provides protections.
A television show or anyone else can also invoke the public records law to request bodycam footage shot by Spokane police. Sure, some of it would be redacted, but the city cannot withhold it or seek permission from everyone filmed before release.
What this ordinance really smacks of is the council’s unhappiness with the city’s lack of authority to prevent the county from allowing camera crews into the city. Spokane might say no, but Spokane County Sheriff Ozzie Knezovich likes the spotlight on his deputies’ good work.
It’s easy for the council to impose potentially unconstitutional hurdles and hope the cameras go away and stop embarrassing the community on national television. It’s much harder to address the underlying challenges of substance abuse and poverty.