Month: October 2015

I will be serving on Columbus, OH’s Police Body Camera Committee.

Over at the Dispatch:

Mayor Michael B. Coleman has announced a nine-member committee to help the city deploy body cameras for 1,800 Columbus police officers by the end of next year.

The committee is to make formal recommendations on how, when and where officers will use the cameras.

The committee also will recommend what images captured by the cameras will be public records.

Some quick thoughts on how challenging this will be, at Northwest News:

Kaminski, a specialist in public accountability and privacy rights, said body cameras present “a serious policy challenge.”

“It will take hard work to balance the public’s right to know with the important privacy interests at stake,” she said

 

I respond to Alex Tsesis‘s Free Speech Constitutionalism over at U. Illinois Law Review:

The First Amendment has a public relations problem. It has been used to defend Nazis and cross-burners, derail campaign finance reform, protect tobacco advertisers, and defeat health privacy.¹ It is no big surprise that a number of scholars have called for rolling back the Supreme Court’s First Amendment absolutism. ² Alexander Tsesis’s Free Speech Constitutionalism provides a theoretical framework for reconsidering the First Amendment. The estimable aim of the article is to provide a guiding theory for bringing more balancing into First Amendment doctrine…

He calls for balancing of the individual right with an interest in the general welfare. The problem is that it can be extraordinarily difficult to determine just what the general welfare is—especially in a pluralistic society where one person’s religious speech is another person’s fighting words…

Nonetheless, something strange is going on. The increased visibility of multiple actions as “speech” under the First Amendment, combined with increased First Amendment formalism, has been expanding the scope of First Amendment coverage. This expansion will inevitably force reevaluation of underlying values. These questions are already arising in the context of discussions of “revenge porn,” of data privacy laws, and of the EU “right to be forgotten.” If we consistently and wholesale prioritize individual information collection and dissemination over general social harms, we may end up in a society incapable of producing truly free speech to begin with.⁴⁴
The question is, then, at what point concern over historical consistency gets obviated by a clearly new set of factors to balance. Another way of putting it might be: at what point does adherence to formalism run counter to valuable underlying principles? Tsesis is admirable in his energetic attempt to answer this question by identifying underlying principles to guide us at this stage. But the mess of First Amendment theory is also part of its beauty. First Amendment cases are so often the vehicle for truly hard lessons about the rule of law. They can present a choice between heartstrings and high principles. A theory that eliminates this dizzying tension risks destroying a valuable vehicle for teaching citizens constitutional principles.