Some Justice & Reason From The Courts Regarding "Invading Public Privacy"

Judge Limits New York Police Taping

The abuses offered by government authorities at all levels are beginning to get the notice of our judiciary as well as our congress critters. At least one judge is able to see his role in unleashing a monster and has the integrity and intestinal fortitude to stand up for what is right, correcting his own mistakes.

In a rebuke of a surveillance practice greatly expanded by the New York Police Department after the Sept. 11 attacks, a federal judge ruled yesterday that the police must stop the routine videotaping of people at public gatherings unless there is an indication that unlawful activity may occur.

Four years ago, at the request of the city, the same judge, Charles S. Haight Jr., gave the police greater authority to investigate political, social and religious groups.

In yesterday’s ruling, Judge Haight, of United States District Court in Manhattan, found that by videotaping people who were exercising their right to free speech and breaking no laws, the Police Department had ignored the milder limits he had imposed on it in 2003.

Citing two events in 2005 — a march in Harlem and a demonstration by homeless people in front of the home of Mayor Michael R. Bloomberg — the judge said the city had offered scant justification for videotaping the people involved.

“There was no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens and the signs by which they hoped to convey their message to a public official.”

While he called the police conduct “egregious,” Judge Haight also offered an unusual judicial mea culpa, taking responsibility for his own words in a 2003 order that he conceded had not been “a model of clarity.”

The restrictions on videotaping do not apply to bridges, tunnels, airports, subways or street traffic, Judge Haight noted, but are meant to control police surveillance at events where people gather to exercise their rights under the First Amendment.

Smile, You’re on N.Y.P.D. Camera

The New York Police Department has generally had the public on its side when it comes to securing the city since the Sept. 11 attacks. For their part, New Yorkers seem perfectly willing to put up with inconveniences, including traffic stops and bag searches. But the police have more and more overstepped their bounds by routinely and indiscriminately videotaping demonstrations of every kind, even peaceful ones. A federal judge was right this week to order the police to curb this conduct.

The practical effect of the order is to compel law-enforcement officers to obey guidelines that require them to state a reason to suspect unlawful activity before they videotape demonstrators. They must also get department authorization. That’s a modest requirement. The city contends the current practice is not strictly unconstitutional, but the prospect of being photographed by police while merely protesting can have a chilling effect on free speech.

The city agreed in 1985 to abide by guidelines for police tactics as part of a settlement of a lawsuit by Vietnam-era political activists. Four years ago, after the 9/11 attacks, a judge agreed to give the police greater powers to investigate political groups. Unfortunately, the cops ignored the part about having a rationale for video surveillance.

This week, the same district court judge, Charles Haight Jr., rebuked the city for that failure. He said it was fine for the police to videotape the hundreds of bike riders who take to the streets on the last Friday of every month as an environmental protest, because the riders have a history of traffic violations. But taping a peaceful demonstration by activists for the homeless in front of Mayor Michael Bloomberg’s home, as was done in 2005, was pointless because the group posed no security threat.

Judge Haight’s lyrical opinion alluded to Longfellow, Greek mythology and even The New Yorker. We hope none of it goes over the heads of the city government, which should now move quickly to ensure the court, and the public, that it will protect New Yorkers’ civil liberties.