‘We Are Criminalizing Transparency to Protect Illegitimate Uses of Power’ - CounterSpin interview with Shahid Buttar on retaliation against copwatchers

Janine Jackson interviewed Shahid Buttar on retaliation against copwatchers for the September 9, 2016, episode of CounterSpin. This is a lightly edited transcript. | MP3 Link

Janine Jackson: If the expression “I can’t breathe” holds power for you, it’s because of Ramsey Orta. He’s the one who held his cellphone camera steady while New York police officer Daniel Pantaleo choked the life out of Eric Garner in July of 2014.

Garner was Orta’s friend. He used to give Orta’s daughter a dollar to spend at the local store every time they walked past. Ramsey Orta’s been sentenced to four years in prison stemming from drug and weapon charges, those that stuck among the many and various police have brought against him since the Garner video came to light.

Chris Leday uploaded video of Alton Sterling’s killing at the hands of Baton Rouge police. Reporting to work the next day, he was arrested, handcuffed and shackled by civilian and military officers. First he “fit a description,” then it was assault charges that didn’t exist; finally, it was unpaid traffic tickets.

Diamond Reynolds, who filmed the killing of her partner, Philando Castile: handcuffed and held in jail for eight hours, separately from her four-year-old daughter.

If you’re seeing a frightening pattern here, you’re doing more than most mainstream journalists. The targeting of citizen journalists for retaliation by law enforcement would present concerns enough for freedom of speech and for the rights of communities to maintain their own safety, were it not matched with a disheartening absence of support from a media establishment that has premised thousands of stories on their world-changing work.

Joining us now to talk about what protections exist for civilian journalists, and what more may be needed, is Shahid Buttar. He’s director of grassroots advocacy at the Electronic Frontier Foundation. He joins us now by phone from San Francisco. Welcome back to CounterSpin, Shahid Buttar.

Shahid Buttar: Thank you so much for having me, Janine.

JJ: The expression “kill the messenger” comes to mind, or at least fail to support, much less celebrate, the messenger, to the extent that they’re not sure they’d do the same thing again. First of all, regular people who film police actions are on the right side of the law as it exists, aren’t they?

SB: Absolutely. The First Amendment unambiguously protects the right to observe and record police activities. And the failure of police departments and agents and officers around the country to respect those rights and, similarly, the failure of the journalistic profession, I think, generally to stand in solidarity with those rights—that is to say, the right of the press, which does not make a distinction between professional and grassroots journalists—is alarming.

And I think this is one of the places where the rubber hits the road in terms of the words in the Constitution and the rights they aim to protect, that being the rubber hitting the road of social practice and, in this case, public safety agencies that perceive any threat to their own political power as analogous to a threat to public safety. And that exactly, of course, precisely gets the relationship wrong, because the people who are capturing police violence on video, they are the ones enhancing public safety here, as well as standing behind very well-settled law that unfortunately the agencies, and unfortunately a lot of journalists, choose to disregard.

JJ: Let’s take a little bit of a look at the legal underpinning there. We do have records on the book that support this right, as you’ve said, but then something happened. What was it that happened in April in Philadelphia that seemed to perhaps throw some of this into question?

SB: Yeah, there was a district court, US district court, in Philadelphia that held for the first time that the First Amendment did not unambiguously protect the right to record police activities. And in that case, the judge invented a novel standard and then failed to apply it, deciding that the First Amendment only protects the right to record police if the person recording the police is overtly hostile to them, which is preposterous, because literally that decision would invite violence, which of course is the first thing the law is supposed to stop, or replace, as it were.

And so the decision would force people who are recording police to announce their hostility in order to gain First Amendment protection, which is basically like asking people to invite getting beaten up or arrested in order to then have a right to go to court. It’s preposterous, and it completely inverts transparency, the role of the judiciary. It turns a blind eye to systemic police violence. It’s almost like the judiciary giving the middle finger to communities of color that have endured arbitrary police violence for 400 years, and are now sparking a discourse around it because of the transparency enabled by cellphones and their use to record police departments.

Interestingly enough, this case is absolutely an aberration, and it is being appealed to the Third Circuit Court of Appeals, where I expect a modicum of sanity to reemerge and rein in that decision and reestablish the well-settled rule that the First Amendment right of the press, if not the Fourteenth Amendment right to equal protection under the laws, or, for that matter, the Fifth Amendment right to due process—that the right to record police activities is constitutionally protected.

JJ: And you’re making very clear that it isn’t as if we’re talking about a mere legal abstraction. Of course, the context is we’re talking about vulnerable people and communities who have this almost accidentally democratic tool or technology that they can use to get some hope of awareness for things that they’ve lived with forever.

And that kind of brings me to the journalistic point. Activist and writer Josmar Trujillo wrote that these cop watchers are not only willing and able to do work that reporters, mainstream reporters, either won’t or, to some degree, can’t do; they’re looking at issues of policing that impact communities of color the most, and it matters that they are oftentimes of these communities. They have also insights that matter.

SB: Uh-huh.

JJ: And what Josmar was saying was, it’s not enough to simply say, they should be allowed to film; we really do have to be outraged, collectively, when they are harassed. He made the point that for an individual cop watcher, having police arrest you and take your phone and erase your footage, it’s like if you raided the offices of CNN, and destroyed their files and their equipment.  And we should see a commensurate response from journalists.

SB: I absolutely agree. The only criticism I’d have in some respects is that the concern proves too much. I mean, the journalistic profession has been taking it on the chin at the hands of the government for decades. And to watch the ranks of journalists fail to internalize that attack is disappointing.

I go back to the Justice Department monitoring the cellphones of AP journalists in Washington, right? Or the repeated attempts to force reporters to divulge their sources in the context of investigations of national security leaks. Or, for that matter, the vilification of whistleblowers, which is no different.

Across all of these contexts, what we are talking about is criminalizing transparency to protect illegitimate uses of power. And that, of course, is what the Constitution is supposed to stop, right? We’re supposed to be committed as a country to transparency and to reining in arbitrary power, but we actually, in each of these situations, whether it’s criminalizing and persecuting whistleblowers for revealing fraud, waste and abuse, or lies by executive officials, or whether it’s jailing grassroots journalists who are recording the police departments in their communities using arbitrary violence to, in some cases, kill people extrajudicially without ever proving guilt of any offense at all, let alone a serious one—and I’ll just throw in an added gloss here—this is at the same time, mind you, that senior executive officials do lie about grave issues of global importance and get away with it.

So we have hyper-persecutory, relentless violence, so-called justice, for the powerless. We have permissive, blind-eye, no modicum of justice, for the powerful. And the transparency that the citizen journalists are providing—I should say civilian journalists, because in a lot of cases, people with cellphones include undocumented people, who are recording ways in which all of our constitutional rights are being violated—it’s a profound public service done by these journalists. And I dare say that the authoritarian hammer has already fallen in lots of arenas, and I dare say that the clarion call to journalists to take seriously the threat to transparency, that was sounded years ago.

JJ: We’ve been speaking with Shahid Buttar, director of grassroots advocacy at the Electronic Frontier Foundation. Find them online at EFF.org. Shahid Buttar, thanks very much for joining us this week on CounterSpin.

SB: Thanks very much for having me, Janine.

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