Why the Ferguson Consent Decree Matters for the First Amendment Commentary
Why the Ferguson Consent Decree Matters for the First Amendment
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JURIST Guest Columnist Jocelyn Simonson of Brooklyn Law School discusses the consent decree between Ferguson, Missouri, and the Department of Justice…

Last week, the City of Ferguson, Missouri, entered into a consent decree [PDF] with the Department of Justice (DOJ) under which it has agreed to overhaul its Police Department practices through a series of changes intended to promote transparency, community engagement, and law enforcement free of racial bias and excessive force. Reversing its previous position in opposition to the consent decree, the Ferguson City Council voted unanimously to approve the decree after a letter from Deputy Attorney General Vanita Gupta—as well as intense pressure from local activists. This consent decree is one of dozens into which the DOJ has entered under 42 U.S.C. § 14141, which allows the DOJ to sue police departments that engage in a pattern and practice of unconstitutional conduct. But the Ferguson consent decree is especially notable because it offers a possibility of beginning to remedy the policing practices that have become a national example of the racial profiling, excessive force, and profit-driven policing that too often infect local policing in America.

The Ferguson consent decree is important for another reason: it provides unprecedented recognition of the breadth of First Amendment protections for civilians who peacefully observe, record, and contest police activities in public. Of the first 28 consent decrees signed between the Department of Justice and local police departments under § 14141, only three—those in East Haven, Seattle [PDF], and New Orleans [PDF]—have included a provision regarding the right to record. The Ferguson decree’s First Amendment provisions are by far the most detailed and robust to date, containing requirements that the Ferguson Police Department (FPD) develop new guidelines, training, and complaint mechanisms respecting the rights of civilians to observe and record police activity and to gather in groups for protests and demonstrations. (These provisions stemmed in part from a previous agreement from August 2014 under which Ferguson, St. Louis, and the State Highway Patrol agreed that members of the public have “a right to record public events.”)

We should be celebrating the Ferguson consent decree’s First Amendment provisions. These provisions recognize and support the importance of civilian resistance to, rather than only cooperation with, local policing practices. Much of the nationwide focus on improving policing in America has centered on the importance of “community policing”—of community members and police departments working together to improve local law enforcement. But equally important is the ability of local residents to publicly observe and contest policing practices. Ferguson provides a potent example of the importance of the rights to observe, record, and dissent: imagine a Ferguson following the death of Michael Brown without the presence of activists, protesters, and civilian videos of those protests. For civilian filming of the police is not only a tool of police accountability, but also a method of expression, of power transfer from police officers to the populations that they police. This transfer of power is especially important in the context of municipalities like Ferguson in which African-Americans make up a majority of the population, yet have relatively little political power.

Filming by disempowered populations has its own term and meaning in social theory—sousveillance is a special term for when cameras are turned on those in power. Sousveillance—being watched from below, rather than from on high—facilitates the transfer of power from authorities to the less powerful. Many civilian filmers recognize the importance of this power shift. Organized copwatching groups, for example, have proliferated around the US in recent years, in part because they link the power transfer involved in filming the police to efforts at larger social change. Indeed, in Ferguson, the Canfield Watchmen formed in the wake of the death of Michael Brown, using crowdsourced funding to equip local residents with body-worn cameras to film the police. Through acts like organized copwatching, filming police in public can become a form of civic engagement, a public gesture in which a civilian says through the pointing of a cell phone at an officer that they are holding that officer accountable in the moment.

A renewed recognition of the First Amendment rights to record, observe, and dissent are necessary to protect the ability of local populations to engage in these important practices. For despite a common understanding that there is constitutional freedom to record the police in public, there has been strong resistance to civilian recording of police officers from police departments around the country, based in large part on accusations that civilian filming “interferes” with police work, places officers in danger, or makes officers hesitant to engage in meaningful police work for fear of being filmed. The DOJ’s Ferguson Report [PDF] highlighted this police resistance to dissent in a nuanced way, documenting how the offense of “contempt of cop” has played out in Ferguson—not simply through arrests for filming in public (although these did occur with some frequency), but also through more subtle police retaliation for filming and verbal dissent in the form of arrests for disorderly conduct, failure to comply, resisting arrest, or the municipal code violation of Manner of Walking along Roadway, often referred to in Ferguson as “Walking while Black.” Although it may seem uncontroversial to require that the Ferguson Police Department refrain from abridging the First Amendment rights of civilians, that requirement is actually crucial to the ability of civilians to regain democratic control of their own streets and roads.

Moreover, the Ferguson consent decree’s First Amendment provisions make an important constitutional statement at a moment in which the First Amendment right to observe and record police activity in public is in flux. Although four circuit courts—the First, Seventh, Ninth, and Eleventh—have found that there is a First Amendment right to record the police, in many federal jurisdictions courts have yet to clearly articulate a right to record, and just last month a district court in Philadelphia held [PDF] that there is no First Amendment right to record a police officer on duty because to film or record with a mobile device is not in itself expressive conduct. The Ferguson consent decree—and the experiences of activists in Ferguson—underscore the error of this First Amendment analysis of the Philadelphia District Court in Fields.

Although a consent decree is not a precedential opinion, it nevertheless adds fuel to the fight to solidify a robust First Amendment right to observe, record and contest police practices. It remains to be seen if and how changes to local policing practices will play out in Ferguson, although the incredible energy of local activists are a promising sign that real change is possible. But one undeniable victory for police accountability is the recognition that the First Amendment protects the ability of civilians to challenge government authority in the moment—to resist and dissent from local government practices through the expressive act of holding a visible recording device or a protest sign. As the Supreme Court stated in 1987, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Jocelyn Simonson is an Assistant Professor at Brooklyn Law School, where she teaches and writes in the areas of Criminal Law, Criminal Procedure, and Evidence. She can be found on Twitter @j_simonson.

Suggested citation: Jocelyn Simonson, Why the Ferguson Consent Decree Matters for the First Amendment, JURIST – Academic, March 29, 2016, http://jurist.org/forum/2016/03/jocelyn-simonson-consent-decree.php


This article was prepared for publication by Alix Ware, an assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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