UPDATE Triumph of the First Amendment

Last week, we were still scratching our heads over the story out of Cincinnati following a Town Hall meeting from Congressman Steve Chabot, where his staff and a Cincinnati police officer confiscated video cameras and cellphones from citizens attending his public meeting -- in a public space.

To say the imagery of police action stopping the open exercise of the very First Amendment to the U.S. Bill of Rights was extraordinary, especially in our backyard. The policy was quickly modified, but still left unsaid (at least in this writer's view) is the severe dampening impact and unconstitutional behavior of a police officer, sworn to uphold the law, using his power of authority to strip citizens of their rights.

At least in Boston that question has been answered.

The U.S. District First Circuit Court of Appeals weighed in on the 2007 case of Simon Gilk of  Boston who, exercising his First Amendment rights to record police arresting a suspect on Boston Common, was arrested for violating wiretap laws among other charges. 

Yeah, that Boston Common. Boston's Central Park. With Common to denote it's perhaps one of the ultimate of public spaces in a city often described as the "Cradle of Liberty."

The Commonwealth quickly dropped some of the charges, and a city judge dumped the rest. Which shows the power of the courts when someone with a law degree gets involved. Unfortunately, officers don't have someone with a law degree by their side when making decisions. Despite dropping the charges, Gilk felt it left open the power of the police department to detain, question, and arrest anyone exercising their First Amendment right.

Here's a big problem for the police: Gilk is a lawyer. He's not just some regular citizen recording from their front yard, such as Akron's Sarah Watkins, who was arrested for doing the very same thing from her own property earlier this year. Gilk's story bears watching in this video from the American Civil Liberties Union; it includes Gilk talking about his experience as well as the actual video he shot with his cellphone:

Just to be clear, here's what the First Amendment looks like -- with my emphasis in boldface:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - First Amendment, U.S. Constitution, Bill of Rights

Seems pretty clear this section of the bedrock of our laws targets government from stopping citizens from exercising in their freedom of speech rights. But, and not surprisingly, some law enforcement agencies take the position citizens using cameras and microphones on public right-of-way violates the rights of the public employee.

A federal court now says otherwise, with a decision that addresses the narrow and specific issue of whether Boston's police officers violated a citizen's civil rights through the action. The answer is yes, they did. Such actions by the public "fits comfortably" with the principles expressed by the First Amendment. Police should not have arrested the man with the microphone. By extension, police shouldn't stop citizens from using cellphones, cameras or recording equipment to show them at work. 

HERE's a link to get a .pdf view of the Court's decision

Oddly enough, officers defending themselves in the now-federal case argued they shouldn't even be questioned because they had qualified immunity. Boston's federal appeals judges tossed that issue aside; qualified immunity doesn't apply when denying civil rights, and make no mistake: the freedom of speech is a basic civil right. Actually, it's the first.

The First Circuit noted the issue in it's narrow form: "...is there a constitutionally protected right to videotape police officers carrying out their duties in public?" The court says the answer is "...unambiguously in the affirmative." For anyone needing a translation, that means yes. It's your right. And police or other public officials stopping you from doing so, even to the point of arrest, are violating your rights.

The First Circuit spreads it's judicial authority over Massachusetts, Rhode Island, Maine, New Hampshire, and Puerto Rico. It's opinion does not cover the ten other districts serving the rest of the United States, but it sends an important and powerful message to those who would muzzle the ability of citizens to exercise their most basic of rights.

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The Failure of the First Amendment

A couple days ago, a Congressman held a Town Hall meeting. Police -- at the direction of the Congressman or his staff -- confiscated citizen cellphones and video recorders in order "to protect the constituents" but left a TV station's camera alone.

Don't take my word for it; the video is pretty self-explanatory and worth watching.



Last year it would have been Democrats targeted by Tea Party activists; this time it's Republican Steve Chabot of Cincinnati targeted by Progressive activists.

Since this happened, Chabot's spokesman Jamie Schwartz says they won't confiscate cameras or cellphones in the future. Video recording was banned, Chabot's office says, because sometimes people ask questions with personal details that should remain personal. The news media cameras could stay because the media could be "...expected to respect people's privacy."

That politicians don't want to be caught on video saying something stupid, or looking stupid, isn't a surprise. They manage to do so quite nicely, with or without video, and most understand it's the way democracy works.

Reminder:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

My boldface enhancing the Oath of Office members of Congress take upon a new term. It's important, those words to "support" and "defend" the Constitution, which includes this language to lead off the Amendments:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." - First Amendment, U.S. Constitution, Bill of Rights

Most police officers also take an Oath of Office, and that sworn duty usually includes language relating to the Constitution. In this case, what exactly does "protect constituents" mean? Is it the same as "that's what they want," as noted by the police officer? Security reasons? When a TV station camera is filming the entire exchange?

In a public school -- a school gymnasium -- where one would assume during games played by children their parents are free to use cellphones and video cameras to share the experience?

During a public meeting, in a public venue, held by a public official -- with a public police officer enforcing "what they want."

"Congress shall make no law...abridging the freedom of speech, or of the press" apparently was enough for the Chabot entourage and this police officer to leave the media alone, but they only got it half right.

- - -

This is a disturbing trend, the open disdain for the rights of citizens to monitor their government at work -- whether it be Congress or the police. And it's a trend that should unite those of us in the media to stand up and speak out when any citizen's most basic, most Constitutional right is violated.

Last January here in Akron, a police officer who ignored a superior's command to ignore a women filming him -- from across the street, on her own property -- and arrested her. Phil Trexler's excellent reporting here in the Akron Beacon Journal jump starts the story, which continues on appeal.

In July, a similar story grabbed headlines and a quick response from the news media (including RTDNA, the Radio Television Digital News Association) when a police officer in Suffolk County, New York arrested a photojournalist for daring to follow along with the aftermath of a high-speed chase. Again, let's go to the video:



My friends in law enforcement don't like it when cameras catch cops doing bad things. I can't blame them. I don't like it when cameras catch reporters doing bad things, either, but a cornerstone of the American way of life is the central theme of the public right to know.

While video or audio from a 9-1-1 call may not tell the complete story, they are important tools that allow the folks paying the bill to see and hear for themselves. It cuts both ways; it condemns those who would abuse their power, but it also illuminates and protects those from abuse. Just ask any police officer about the impact of dash-cam video when used to prosecute drunk and reckless drivers. It's made their job not only more efficient, but more just.

This First Amendment is what distinguishes the U.S. Constitution from those in so many other nations; the belief that the people ultimately hold the cards, and the people can be treated like adults to digest what they see, hear and read to decide for themselves.

Hiding the wheels of justice, or hiding a Congressman from his own constituents, is a no-brainer abuse of the U.S. Constitution these public servants take an oath to uphold. It's the bedrock of a free and open society, which is why totalitarian governments move so quickly to quash freedom of speech and expression. Those who abuse power know the truth, that freedom is empowering.

There is no exclusivity to abuse of power. Last year, Democrats didn't like the Tea Party using such tactics such as video recording a congressional Town Hall meeting; this time outside of Cincinnati, it was a Republican targeting Progressives employing the same strategy. The label of liberal or conservative, Tea Party or Progressive, doesn't matter when the central issue becomes an abuse of the power granted these public servants by the very Constitution they swear to uphold. That covers those elected such as Steve Chabot, as well as those appointed such as the police officer caught on tape openly abusing the U.S. Bill of Rights.

As long as we keep silent on such issues -- not only as members of the media but also as fellow citizens -- we encourage such abuses, and embolden those who would impose their version of orderly dialogue on a system the founding fathers clearly envisioned as a sometimes messy but always necessary component of democracy. Too many of our forefathers spilled their blood to have it any other way.

When Chabot holds his next meeting, folks asking personal questions will be asked to come forward after the public meeting to share their details. It's a good, common sense approach that a more constitutionally-aware adult would have reached before trampling over the rights of the people to exercise their public business in public.

Perhaps the oath of office should include a history lesson, too.

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Crisis Averted? Hardly...

Been reading a lot recently on the "What Would Jesus Do?" string, primarily aimed at how the budget crisis in Washington (and yeah, it's still a crisis when you spend $1.40 for every dollar taken in) impact those who need the help the most.

It's a very legitimate question, with two driving forces:

• Unless you want to wind up like Czar Nicholas II of Imperial Russia or King Louis XVI of France, it's helpful to make sure most people have the basics;
• It's also the right thing to do. The measure of a society isn't always found in the grand monuments it builds. The true, enduring legacy is how it treats those in the underclass, and their ability to find opportunity to improve their lot in life.

It's the latter point most use to describe America; this idea that regardless of political, social or economic station anyone, from any family, can lift themselves to achieve greatness. This romantic version of the individual winning through hard work and dedication is a beacon that still attracts millions from around the world who seek a better life.

King Louis XVI oversaw the demise of the bloated French aristocracy because the government spent like there was no tomorrow -- and the payday for the upper class was not pretty, thanks to Monsieur Guillotine. Nicholas II and his family didn't realize their royalty also made them responsible for the peasant class, when when there was no bread left the fires of October 1917 consumed them to the point where they were wiped off the face of the earth.

On a recent trip to New York, I had a great conversation with a cab driver. Not a surprise -- New York cabbies say the most interesting things -- but this talk came with a man from Liberia who fled that nation's civil war, landed in Dallas, won a green card, moved to New York and drove it's streets to make ends meet. Why, he wondered, did he have this opportunity as a mere immigrant and why weren't ordinary Americans taking advantage of this opportunity to earn for their families? He says it's why so many taxi drivers, hotel maids, construction workers and service employees experience the American dream thanks to a green card. Here, he can work. And save. And raise a family without worrying about his children pressed into an army at gunpoint to kill their cousins.

In all the talk the past weeks, we've missed the point this is still a great country, with a great message. We've let what passes for leadership in America portray the 2011 version of the dream. We've become paralyzed by the divisive politics the power-brokers and their consultants practice on a daily basis on talk radio, talk television, and op/ed pieces. We seem more interested in what divides because, like reality shows so cheap to produce, it's the most efficient way to draw ratings.

America's public leadership is turning into "The Amazing Race" only with our money and our futures tied into the outcome.

The numbers are so daunting; the public journalism site ProPublica recently posted a by the numbers piece titled Our Sputtering Economy and it isn't pretty:

• Annual rate at which the GDP grew this year: 1.3 percent between April and June, 0.4 percent between January and March
• Average annual GDP growth from 1998-2007: 3.02 percent
• Total jobs lost since January 2008: 8.7 million
• Total jobs recovered since January 2008: 1.8 million
• Recession technically ended: over two years ago, in June 2009
• Current unemployment rate: 9.2 percent
• The "natural unemployment rate": 5 percent
• Months that the unemployment rate has been around 9 percent or more: 28
• Number of unemployed people in June 2011: 14.1 million
• Growth in number of unemployed people since March 2011: 545,000
• Number of long-term unemployed people in June 2011: 6.3 million, or 44.4 percent of the unemployed
• Pace at which jobs were added throughout the late 1990s: 350,00 per month
• Jobs that were added in June: 18,000
• Jobs the U.S. needs to create to 5 percent unemployment rate: 6.8 million, as of January 2011
• Years it will take to get back to an unemployment rate of 5 percent: four years if we're adding jobs at 350,000 per month; 11 years if we're adding jobs at the 2005 rate of 210,000 per month
• Unemployed workers per job opening: 4.98
• Number of people who weren't in the labor force, but wanted work, as of June 2011: 2.7 million
• The last time the labor force participation rate was lower than it is now: 1984
• The amount of state budget spending that comes from the federal government: about 1/3, or $478 billion in 2010
• Increase in before-tax corporate profits in the first quarter of 2011: $140.3 billion
• Percentage of Americans' total personal income that comes from federal funds: almost 20 percent
• Spending cuts in the proposed budget: at least $2.3 trillion over a decade from 2012-2021
• How long you can currently receive unemployment benefits: up to 99 weeks
• The number of those weeks funded to some extent by federal aid: up to 73
• People currently relying on federal unemployment benefits: 3.8 million
• How long you'll be able to receive unemployment benefits if you lose your job after July 1, 2011: 20 to 26 weeks, depending on your state
• Recovery-funded jobs reported by recipients, according to recovery.gov: 550,621
• Amount of stimulus money left to be spent: $122.8 billion of the original $787 billion

To break this all down to simple math you use everyday when running your own house, here's the state of the United States on a balance sheet the bank would ask for:

• Annual spending (est.) for 2011 $3,800,000,000.00
• Annual revenues (est.) for 2011 2,173,700,000.00
• Total: -1,626,300,000.00

Let's add in the estimated federal debt: $15,476,000,000.00

Making it easier to relate to, drop all those zeros and imagine it's the kind of money you make. Your annual salary is $21,737 a year. That might be what you would make in your first job, fresh out of high school. But you are spending $38,000 a year. You're already $16,263 in the hole.

But wait, there's more.

In addition to already being in the hole, you are already in debt and owe lenders $154,760.

How much of that salary do you think will go to paying the debt more than seven times what you make each year? During the height of the easy housing money craze, banks were lending money to folks who no way, no how could make those kind of payments back. They didn't care. In the short-term, it looked like there was a lot of business in moving houses. Lots of bonuses, too. And the housing bubble burst and left millions in foreclosure, or in homes they can't afford, and the rest bailing out the ones who lent the money or created the government programs to begin with.

When President Obama talks about balance, he's absolutely right: we all know, deep down, that a system bailing out managers so ready to take risks with other people's money is crazy. Too big to fail, however, changed the equation on private businesses paying for their own mistakes. But the answer is not in the type of class warfare that paints the rich as ripe for the taking. That's the type of thinking that left blood on the streets of Paris and Moscow, those grand revolutions.

I'd prefer the revolution of an America where the tired and huddled masses came to build a new future.

The question shouldn't be how to fix this budget mess as cold accountants would suggest, because those decisions have no heart and have no justice. The bottom line doesn't care who it hurts, only that the bottom line finishes in the black rather than red. Conversely, truly helping build an opportunity society that can lift people out of poverty without bankrupting those making the social investment also means respecting those paying the bills. And at this rate, Washington has demonstrated it has little respect for those it expects to pay for it's mistakes.

Recent studies have noted poverty rates haven't budged much since the Great Society's War on Poverty started in the 1960s. It enables a society to expect someone to provide the fish dinner rather than encourage, in the biblical, to teach one how to fish. Our leadership talks innovation, but in the long run they are as dependent on the vicious infighting over pennies when arguing over tax policy than the dollars found in encouraging growth.

Our leaders need to stop thinking small. They need to show the testicular fortitude to think big and risk going home when we voters, consumed by self-interest, punish them for seeing a larger picture. This is only going to get worse as the swell of the Me Generation baby boomers hit Social Security and Medicaid age, and if politicians thought the AARP lobby was powerful now wait until they get a load of the constituency expecting their payday the next 15 years.

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