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Why the First Amendment remains a key check and balance to police militarization

The disproportionate impact of police militarization upon poor and minority communities highlights the need to uphold the right to record police activity in a democratic society.

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Image: Evan Vucci via CNET/CBS Interactive

Over the past week, the furor, tension, anger, violence and, by week's end, stirrings of hope in Ferguson, Missouri, have captured the world's attention. We've seen what the militarization of American policing looks like in practice, through photos and videos shared and reshared online and on broadcast news. Iconic images of military-grade armored vehicles, officers dressed in riot gear and camouflage ill-suited for urban environments, and a sniper training a long gun on a peaceful protest are likely to linger in the national consciousness for decades to come, along with the uneasy truths they reveal.

As I've watched from afar, I've been struck again by how much technology has changed society and how it has not. Social media and livestreams have not only enabled people to share what they're seeing and experiencing, as sources going direct, but have allowed the rest of the world to observe what is happening. People could see how images and videos differed from the official accounts from local law enforcement or the narratives spun by ideologically diverse cable news stations and publications.

The same platforms that carried images of sadness, anger, violence, and police use of force also enabled people to protest how their community was being depicted: The fatal shooting of 18 year old Michael Brown by a police officer spurred an outpouring of activism on Twitter deploring media stereotypes of young black men.

While I can't claim direct knowledge through reporting on the ground, today's 21st century new media environment seems to have caught both the Ferguson and St. Louis Police Departments by surprise. The arrogance displayed when officers arrested reporters from the Huffington Post and The Washington Post strongly suggested a lack of respect for traditional journalism, much less the constitutional rights of the public that law enforcement officers are sworn to protect and defend.

"There is never an excuse for violence against police or for those who would use this tragedy as a cover for vandalism or looting," President Barack Obama said. "There's also no excuse for police to use excessive force against peaceful protests or to throw protesters in jail for lawfully exercising their First Amendment rights. And here in the United States of America, police should not be bullying or arresting journalists who are just trying to do their jobs and report to the American people on what they see on the ground."

Over the coming weeks, as the FBI and Justice Department work with Missouri state and local government to investigate the death of Michael Brown, there will be an opportunity to learn what went wrong in this instance and to recognize the systemic issues in Ferguson and around the United States. Concerns about the militarization of policing raised by the American Civil Liberties Union and civil libertarians like author Radley Balko and Conor Friedersdorf will be given fresh air, from reported attempts to thwart open records laws to the impact upon innocent people to mission creep from traditional SWAT missions.

The gentleman on the left has more personal body armor and weaponry than I did while invading Iraq. pic.twitter.com/5u6TxyIbkk

- Brandon Friedman (@BFriedmanDC) August 14, 2014

The disproportionate impact and direction of police militarization toward minorities and poor communities also merit more attention from governors, as well as the Justice Department, although it will need to get its own house in order.

"At a time when we must seek to rebuild trust between law enforcement and the local community," United States Attorney General Eric H. Holder Jr. said, "I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message."

If Congress and the Justice Department are concerned about law enforcement militarization, perhaps they should take meaningful steps to slow or halt federal grants for the purchase of military-grade hardware, particularly as vehicles and gear flow to police departments from the Pentagon after a decade of war in Iraq and Afghanistan. One step might be the serious consideration of Georgia Congressman Hank Johnson's bill, backed by conservative and liberal groups, which would direct the Secretary of Defense to make limitations on the transfer of property to state agencies.

As ever, the use of disruptive technology poses ethical questions for society. While SWAT teams can and should be equipped with the surveillance technology and gear they need to fight heavily armed gangs, drug traffickers, and domestic terrorism, making all police officers look like soldiers increases the likelihood of their acting like military, except without the training or discipline. After Ferguson, police departments should consider pursuing community policing and full disclosure in the face of similar unrest, not occupation, unofficial martial law, and suspension of the Bill of Rights.

"After #Ferguson, how should police respond to protests?"-@RadleyBalko http://t.co/URrqPpAIBk Community policing. pic.twitter.com/JvAa1q0NG0

- Alex Howard (@digiphile) August 15, 2014

On that count, it's worth noting that we have the right to record the police conducting their public duties, if not what other citizens do in private. While this First Amendment right is not absolute (you cannot interfere with the police's business, like, blocking their means of entry or egress), you can film the police, even if they tell you not to do so. This right was recently backed up by the Department of Justice. Moreover, the police do not have the right to confiscate mobile devices used to do so, nor search them without a warrant, after this year's landmark Supreme Court decision that applied the Fourth Amendment to the digital domain.

Everyone has the right to record what police officers are doing in public in their communities. In the wake of Ferguson and in the context of police shootings nationwide, citizens knowing their rights to peacefully assemble and observe may provide much-needed accountability for brutality and abuse.

About Alex Howard

Alex Howard writes about how shifts in technology are changing government and society. A former fellow at Harvard and Columbia, he is the founder of "E Pluribus Unum," a blog focused on open government and technology.

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