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A Cell Phone Recording, First Amendment Rights and a Guilty Verdict

When 17-year old Darnella Frazier used her cell phone on May 25, 2020, to record the murder of George Floyd, a horrifying episode which, viewers across the globe know, lasted nine minutes and 29 seconds, she probably did not stop to think that she was exercising her First Amendment right of freedom of expression and, perhaps, an element of freedom of the press. As the guilty verdict in the murder trial of Minneapolis policeman, Derek Chauvin revealed, she was “filming” not only an American tragedy in real time, but the most impactful civil rights footage since the Civil Rights Movement.

History and the worlds of journalism and criminal justice are indebted to Frazier for summoning the presence of mind to record the excruciating murder of Mr. Floyd. Because of her courage, millions of Americans everywhere have borne witness to the most direct and compelling evidence of the commission of a crime that they likely will ever see. Her recording may be a catalyst for justice in much the same way cameras captured the civil rights sit-ins at the Woolworth’s lunch counter in Greensboro, North Carolina in 1960, and the gruesome reality of Sheriff Bull Connor’s attacks on peaceful protestors in Birmingham, Alabama in the early 1960s.

“Facts matter,” President John Adams was fond of reminding listeners. Indeed, facts matter to our democracy, which requires truth and evidence to create sound policies, programs and laws. Facts matter, as well, to jurors and all those who participate in the criminal justice system. They should matter to those interested in truth and accuracy in our daily conversations and representations.

Photos, like news stories, can inform the citizenry, facilitate engagement and participation in public affairs and usher in social change. Photos and news reports influenced public opinion about the practice and impact of racial discrimination in our nation. News footage of police violence perpetrated against peaceful black protestors and marchers in the south in the 1960s, changed the nation’s perception of the Civil Rights Movement and generated critical support for the passage of such landmark legislation as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Ms. Frazier’s video of Officer Chauvin driving his knee into the neck of Mr. Floyd may prove as useful to meaningful reform of law enforcement techniques and practices as the footage of race discrimination was to the congressionally enacted reforms to civil rights law in the 1960s. Let us hope so.

The framers of our Bill of Rights had in mind the importance of “facts” and their illumination of issues for purposes of public understanding and discussion when they drafted the First Amendment’s free speech and free press clauses. The founders characterized the press clause, in the words of Thomas Jefferson, as “the people’s right to know.” Without knowledge of governmental activities that can be best supplied by a free, independent and constitutionally protected press, the right of the people to formulate opinions, provide critiques and criticisms, and even participate in public affairs, would be greatly diminished. The press fulfills an essential role in our democracy, for “it serves the governed,” Justice Hugo Black wrote in the Pentagon Papers Case, “not the governors.”

Citizens enjoy, by virtue of freedom of speech the right to speak and listen, which entails the right to record or film governmental agents in the exercise of their roles and duties. It has become commonplace for private citizens, like professional journalists, to record and film officials’ speeches and announcements, on the steps of government buildings, in parks and on the public streets. That free speech interest also encompasses a free press component as cell phones and the wonders of technology have broadened the sphere of photojournalism and made every citizen a photographer, able to share breaking news with the masses, indeed, the entire planet, as Ms. Frazier’s recording demonstrates.

The Supreme Court has not drawn a clear, bright line distinguishing an “organized press,” which at the time of the founding enjoyed a special, protected status under the Free Press Clause, from others who take photos of events, write blogs and pamphlets, or otherwise seek to communicate through the spoken or written word, such as scholars and writers for underground newspapers. Perhaps it’s unnecessary. Regardless, on May 25, 2020, Darnella Frazier exhibited the instincts of the best reporters. She stood her ground and, with her cell phone, recorded history that may change a nation.

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