Millions have watched cellphone videos of police violating Americans’ rights. United States Customs and Border Protection (“CBP”) is trying to make sure the same doesn’t happen to them by banning video and photography—not in secure spaces or regarding special operations, but out in the open in the ordinary court of business.
In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.
Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.”
In 1971, the government tried to stop the New York Times from publishing the Pentagon Papers—which the Times later described as evidence that the executive branch had “systematically lied, not only to the public but also to Congress” about the war in Vietnam. The Supreme Court refused to block the publication. Two justices would have never blocked speech on the basis of national security, but the middle ground position required at least a showing that the publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people.” N.Y. Times v. United States (1971). Such a showing was not even attempted in this case—nor could it have been made given that the information is already known to everyone who crosses or is in eyesight of the border.
We also raised the issue of fair judicial process. A restriction on the First Amendment right on a public sidewalk must be narrowly tailored to a compelling government interest. The government doesn’t even claim that its policy was narrowly tailored, instead asserting that it “need not constitute the least restrictive alternative available.” Instead, the district court decided on its own that the policy was narrowly tailored. The Supreme Court has held that the Due Process Clause requires “notice and a meaningful opportunity to be heard before a claim is decided.” Lachance v. Erickson (1998). The photographers here should have been given the opportunity to rebut any argument of narrow tailoring—which isn’t credible in the first place.
The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.
This piece was originally published at Cato at Liberty.