Legal Commentary

Update:

I just submitted my new article, Orwell's Vision: Video and the Future of Civil Rights Enforcement to law reviews. I did not do anything as bold as what Brian suggested; I usually just submit straight-up to journals and hope for the best. Sort of a 1999 approach to things (except done by ExpressO).

The paper is up and can be downloaded here. I spoke with SSRN; it seems there is bug in the program that will not recognize certain characters in the fields, notably characters made via autoformat on Word (my problem was having several m-dashes in the text).

The abstract appears after the jump. I may write about some of these issues in the coming weeks.

ORWELL?S VISION: VIDEO AND THE FUTURE OF CIVIL RIGHTS ENFORCEMENT

Howard M. Wasserman

Abstract

The future of the enforcement of civil rights and civil liberties is linked to video. The proliferation of recording technology enables everyone?law enforcement, suspects, and bystanders?to record police-public encounters on the streets and in the station house. The result is a balance of power in which all sides can record most police-public encounters?Big Brother is watching the public, but the public is able to watch Big Brother. The effect of this balanced proliferation of technology is to place video (and audio) recording at the heart of much modern civil-rights litigation and the enforcement of constitutional liberties.



Video plays two roles in civil-rights enforcement, one at the back end and one at the front end of constitutional disputes arising from encounters between police and members of the public. At the back end is the question of what role those recordings play in enforcing constitutional rights and remedying constitutional violations captured on audio and video?as evidence in constitutional litigation (at trial and during pre-trial processes) under § 1983 and its federal equivalent, and as the basis for non-litigation remediation of any constitutional misconduct by government officials, such as settling lawsuits, disciplining offending officers, and creating or altering government policies to avoid similar misconduct in the future. Back-end use of video for civil-rights enforcement is complicated by two related considerations. First, film and literary theory show that it is a myth that video evidence is an unambiguous, objective, conclusive, singular, and clear reproduction of reality; in fact video evidence must be interpreted and construed (as with all evidence) and what a piece of video evidence means or signifies depends on who is watching, perceiving, and interpreting. Second is the recent Harvard Law Review study by Dan Kahan, Dave Hoffman, and Dan Braman, showing that video evidence is uniquely ripe for the effects of what they label cultural cognition, where the viewer?s interpretation or the message she draws will be highly contextualized and individualized and likely affected by a viewer?s identity-defining cultural characteristics of race, age, sex, socio-economic status, education, cultural orientation, ideology, and party affiliation. These insights together demand a level of caution?a degree of judicial humility in how certain they should be about what they (believe they) understand from the recording and the appropriate legal and policy steps to take in response. Most importantly, courts must not allow misunderstandings about video to expand the use of summary judgment to pull a case from the jury; it is for the jury to interpret video and decide video?s meaning. Government policy makers and lawyers should be similarly cautious in using video in making non-litigation remedial decisions, especially in disciplining officers and settling litigation.



At the front end is the question of whether individuals possess a right to record police-public encounters as they occur and whether government can limit people?s ability to use modern technology to create their own records of events. Government might restrict public recording in either of two ways?specific prohibitions on unconsented-to recording of conversations that include conversations by police officers performing official functions or enforcement of general rules of public conduct as to people attempting to record police-public encounters. The front-end question is whether the First Amendment provides the people a liberty to record such events in public spaces, to be the source of video evidence of police misconduct that will be used to resolve the underlying constitutional dispute. The answer to this question must be ?yes,? in order to maintain that balance of power in availability and control of video evidence. Video still plays, and as technology advances increasingly will play, a substantial role in civil rights enforcement. Government therefore cannot have a monopoly on the ability to record police-public encounters.