Is It a Crime To Commit Journalism?

JOOTB_FinalAs a rule, misdemeanor cases are on the less important end of the criminal justice system.  Crimes punishable as misdemeanors are not as serious as felonies. The penalties aren't as severe. And public interest in them is typically not intense. 

But sometimes, these "small" cases represent a critically important principle.  Such is the case with the City of Cincinnati v. Calvin Andrus, a misdemeanor case in Hamilton County Municipal Court. 

Mr. Andrus is a freelance journalist and professional videographer.  He has worked in this field for almost 30 years.  Mr. Andrus monitors open police and fire communications and shoots video of traffic accidents, fires and shootings.  He then sells his videos to local TV stations. 

On November 23 of last year, Mr. Andrus heard on his radio information about a fatal car crash in Spring Grove Village.  Mr. Andrus traveled to the site, set up outside the yellow police tape and started recording the scene.  For some reason, this got under the skin of an officer on the scene, who told Mr. Andrus to move away from the scene.  Mr. Andrus complied with the order, but in the process, attempted to educate the officer about his First Amendment right to record the activity.  The officer, who was apparently camera shy and ill informed, arrested Mr. Andrus and charged him with obstructing official business. 

There are at least two problems with the arrest.  First, the Ohio statute that applies here defines "obstructing official business" requires the obstructer to "do [an] act that hampers or impeded a public official in the performance of the public official's lawful duties."  Passively recording police activity – especially from behind police tape – in no way hampers or impedes a police officer from doing his job at an accident scene.  And it would make a mockery of the statute to allow a police officer to pick an argument with the photographer and then claim that scenario constitutes "obstruction."

The other problem with the arrest is that it violates the First Amendment.  Courts around the country have found that journalists have a right to record police activity.  And the police can't order someone who is not actively interfering with the police activity to stop recording.  And there is a good reason for this.  Ohio's First District Court of Appeals noted:  "Rodney King. Eric Garner. Walter Scott. George Floyd. These men and their stories of violent encounters with police are known today because citizen journalists created spontaneous recordings of law enforcement activity in public ... As these cases demonstrate, video recordings can promote accountability and public discourse when law enforcement officers fail to perform their jobs in a safe and lawful manner ... And video recordings can also exonerate police officers from baseless accusations by individuals as well ... In total, recording police activity in public merely promotes the truth."

In other words, cameras can pick up good police or bad police work.  But the cameras have to keep running.  To arbitrarily stop the recording puts an end to truth gathering.  And that is why the First Amendment protects Mr. Andrus. Even in this small case. 

As I was writing this column I learned that the City of Cincinnati wisely decided to dismiss the case.  Good decision.  While Mr. Andrus should never have been arrested, it's good that the City decided not to add insult to injury.

About The Author

Jack Greiner | Faruki Partner