A Case Study in Local News Futility

A Pennsylvania TV station utterly botches an important story about police officers and transparency.

The Norman Lear Center at the University of Southern California's Annenberg School for Communication and Journalism recently surveyed 490 hours of local news reports in the Los Angeles area and found what most people who watch local news probably already knew: It's dreadful. The survey found that the average amount of time devoted to actual local news was less than the time given to commercials. The most covered local news topic was crime, but as local news consumers are all too aware, coverage of crime at the local level (or for that matter, at the national level) tends to be sensationalist, honing in on single-incident, high-profile crimes rather than providing any serious coverage of broader criminal justice policy.

I've been writing about the criminal justice system for several years now, and I have repeatedly seen local news reports butcher the particular topics or specific incidents in which I have some expertise (here's one example; here's another). It's downright frightening to imagine just how much bad information local newscasts probably deliver on other topics from night to night, particulalry given that local TV is the primary source of news for most Americans.

To illustrate, consider the report below from WJET, the ABC affiliate in Erie, Pennsylvania. The segment looks at the legal debate over citizens recording on-duty police officers, a topic I've covered in depth over the last few months. The report was captured by a local police watchdog group and posted to YouTube.

Here's what the report gets right: There have been some stories in the news of late about people getting arrested for recording police officers in public. Here's what the report gets wrong: almost everything else.

First, watch:

The impetus for this story likely came from an article by Wendy McElroy called "Are Cameras the New Guns?" which was picked up by Gizmodo a couple weeks before the WJET story ran, then went viral. But if all you knew about the debate over the legality of recording on-duty cops came from the WJET report, you'd be completely misinformed about what's actually going on.

The anchor kicks off the parade of errors in his lead-in, stating that "a new law gaining ground in about a dozen states" could make shooting video of on-duty police officers illegal.

Almost nothing in that statement is true. There is no trendy law sweeping state legislatures that makes it illegal to record police. In fact, no state legislature has expressly made recording cops illegal in more than a decade. The "dozen states" part likely comes from a line in McElroy's column noting that there are "12 states in which all parties must consent for a recording to be legal." That is true. But these laws aren't new, and they aren't "gaining ground." Most are decades-old wiretapping laws, some dating back to the 1960s. Nine of the 12 all-party consent states have a provision which says that in order for there to be a violation of the law, the offended party must have had a reasonable expectation of privacy with respect to the recorded conversation.

To date, both state and federal courts have ruled that on-duty police officers have no expectation of privacy while they are in public. That means that in those nine states with the privacy provision, it is legal to record cops in public. It's also legal to record them in the 38 states that only require one party to a conversation to consent for the conversation to be legally recorded. This doesn't mean that people aren't being arrested for recording cops, it means that many of those arrests are illegal.

The anchor then throws the story to reporter John Treanor, who begins with more misinformation:

Three states have already adopted what's called a consent law that would mean no citizen could shoot video of a police officer in public without their consent, but it's a law that's causing plenty of controversy.

Treanor again makes it sound like these laws are new. They aren't. None of the three states to which he's referring—Illinois, Massachusetts, and Maryland—have passed any recent law on the legality of recording police. The last significant policy change in Massachusetts came in 2001, when the state's highest court upheld the conviction of a man who was charged under the state's wiretapping statute. Massachusetts and Illinois are the only two states whose wiretapping laws are both all-party consent and contain no expectation of privacy provision.

The Illinois legislature did pass a law removing the privacy provision, and did so in response to that state's Supreme Court finding, as other courts have, that police officers in public have no expectation of privacy. In other words, the state legislature took action for the specific purpose of making it illegal to record cops in public. But one state doesn't make a trend. And that revision occurred in 1994.

The only state where there's been recent action is Maryland, and even there the action hasn't come from the legislature. Maryland has a privacy exemption, but the state's police organizations and some of its prosecutors have decided to interpret it in a rather absurd way. Under their reading of the law, when on-duty police officers interact with the public, the cops retain privacy rights with respect to those interactions. But the citizens they're interacting with—be it during a traffic stop, an arrest, or some sort of questioning—retain no such rights. This bizarre new interpretation of state law seems to be in response to a high-profile incident last February where several cell phone cameras recorded Maryland police beating a student in College Park. Those recordings contradicted accounts of the incident filed in police reports.

But again, there is no new law in Maryland.

Treanor even finds an academic expert to comment on this non-existent trend of non-existent new laws. Anthony Peyronel, identified as a professor at Edinboro University, makes the predictable prediction that law enforcement groups will love this new law, while media organizations and civil libertarians are likely to hate it. Peyronel, whom Treanor presumably asked to appear on camera because he has some expertise on these issues, never questions Treanor's underlying premise. The expert ends up aiding Treanor and WJET in making Erie viewers more ignorant.

But it gets worse. The WJET report implies that it is either illegal to record on-duty cops, or it soon could be. But Pennsylvania, where the report aired, is one state where the courts have made it clear that it is perfectly legal to record on-duty cops. The Pennsylvania Supreme Court ruled in 1989 that a man who surreptitiously recorded the state trooper recording him could not have violated the state's wiretapping law because the trooper had no expectation of privacy. And in 2005, a federal district court judge in Pennsylvania tossed the conviction of a man arrested for recording police from a nearby field. That judge added that his ruling wasn't even "a close case" and ordered the police officers to pay punitive and compensatory damages.

This isn't to say that people aren't still being arrested for recording cops in public—in Pennsylvania or elsewhere—or that cops aren't still threatening people who attempt to record them with cell phones or other devices. In fact, in spite of those court rulings, a Pittsburgh man was arrested just last year for recording police officers making an arrest. But his conviction was also overturned, and he's now suing the police for violating his civil rights.

This is precisely the point WJET misses, and it's where this particular local news reports veers from merely awful to dangerous. The law is settled in Pennsylvania. You have the right to record cops in public. The real story here is that when these arrests happen, it is the police who are violating the law, not the person holding the camera. In implying that the law isn't yet settled, and that it may soon be illegal to record cops in Pennsylvania, WJET not only botches the facts, it spreads misinformation about a critical issue affecting the relationship between the governing and the governed—the ability to keep public safety officers transparent and accountable.

Radley Balko is a senior editor at Reason magazine. This column first appeared at Reason.com.

Radley Balko is Senior Editor





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