As far as I’m aware, nobody has come out in support of the actions of two California Highway Patrol officers responsible for the posting of crime scene photographs of Nikki Catsouras’ decapitated body on the internet. I could be wrong about this, given how many sick people there are, but if so, I’m not aware of it.
The family’s suit against CHP, however, had some stumbling blocks. The right to privacy is personal, and is extinguished upon death. That leaves the dead fair game, but it was the law. But as ugly cases make for ugly decisions, the CaliforniaSupreme Court 4th District Court of Appeals ruled against the two CHP officers’ argument that they had a First Amendment right to disseminate the photographs. As described by Mike at Crime & Federalism,
The family’s suit against CHP, however, had some stumbling blocks. The right to privacy is personal, and is extinguished upon death. That leaves the dead fair game, but it was the law. But as ugly cases make for ugly decisions, the California
Recognizing that the CHP officers forwarded unaltered photographs, the Court of Appeal still ignores their First Amendment defense. The Court acted as a super-censor: “Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interest or law enforcement purpose.” Slip op. at 17.
Mike takes a dim view of this rationale.
Where is the “sensationalism” exception to the First Amendment? The First Amendment provides that “Congress [and the States, vis-a-vis the Fourteenth Amendment] shall make no law … abridging the freedom of speech [].” Even morbid and sensational speech is protected.
He’s right. As disgusting as these photographs, and the actions of the CHP officers may be, there is no First Amendment exception that precludes them from protection.
But that’s not the end of the story, as far as I’m concerned. In my past discussion of this case, I urged a snarky test to determine whether the conduct was acceptable.
But now that the California Supremes have ruled, a more useful analysis seems appropriate.
The officers involved possess a First Amendment right to free speech in their individual capacity. They are human beings, and as such have all the rights and protections the Constitution provides to each of us. This is true even if they don’t happen to afford other human beings the full panoply of rights in the course of their employment, an issue for another day.
But when they put on the uniform, the shield and strap on the weapon, they do not do so in their individual capacity, but by authorization of the State. They take on a separate and distinct role, that of a police officer, a government official serving in a delineated capacity. Just as they can’t pull out their gun and shoot someone who personally annoys them, their ordinary human actions are constrained by their official authorization and limitations. Each police officer may only have one physical body, but there are in essence two people there, one of which is a State actor.
The officers came into possession of the crime scene photographs of Nikki Catsouras in their capacity as officials of the State, not because they were regular guys cruising the highway on motorcycles. Their possession, and their subsequent conduct in disseminating the photographs, was not an exercise of their individual First Amendment right to free speech, but an exercise of their official duty as police officers, as officials of the State of California. While the First Amendment may safeguard their personal rights as human beings, it doesn’t protect them as officials of the State to express themselves. Indeed, there is no “themselves” when crossing the line from badge-wearers to regular guys.
Mike’s fear, that some reduced value “sensationalist” speech will come back to haunt all of us, blawgers included, strikes me as very real. It opens the door to enormous mischief, where it may be left to judges to decide whether speech is sufficiently “important” to be worthy of protection as balanced against something as amorphous as good taste. Sensationalism is rampant, often used to grab attention to make a point.
But then, do people who come into possession of such sensationalist and morbid photographs as those of the decapitated Nikki Catsouras solely because of their official capacity as police officers get to switch hats at will and enjoy the right free speech that exists to protect us from the government? That’s a very different question. I would distinguish the roles, and hence the protection, offered by the First Amendment, leaving individuals with the full protection they were meant to have while stripping the government, and its officials, of protection for abusing their positions. The government doesn’t need free speech protection. It has the guns.
There was no need to craft an exception for sensationalist speech that will likely inure to our detriment eventually just to find a way to make these two CHP miscreants liable. There was a better way.
But that’s not the end of the story, as far as I’m concerned. In my past discussion of this case, I urged a snarky test to determine whether the conduct was acceptable.
My brightline test would be simple: If it makes you want to puke, then liability exists.
But now that the California Supremes have ruled, a more useful analysis seems appropriate.
The officers involved possess a First Amendment right to free speech in their individual capacity. They are human beings, and as such have all the rights and protections the Constitution provides to each of us. This is true even if they don’t happen to afford other human beings the full panoply of rights in the course of their employment, an issue for another day.
But when they put on the uniform, the shield and strap on the weapon, they do not do so in their individual capacity, but by authorization of the State. They take on a separate and distinct role, that of a police officer, a government official serving in a delineated capacity. Just as they can’t pull out their gun and shoot someone who personally annoys them, their ordinary human actions are constrained by their official authorization and limitations. Each police officer may only have one physical body, but there are in essence two people there, one of which is a State actor.
The officers came into possession of the crime scene photographs of Nikki Catsouras in their capacity as officials of the State, not because they were regular guys cruising the highway on motorcycles. Their possession, and their subsequent conduct in disseminating the photographs, was not an exercise of their individual First Amendment right to free speech, but an exercise of their official duty as police officers, as officials of the State of California. While the First Amendment may safeguard their personal rights as human beings, it doesn’t protect them as officials of the State to express themselves. Indeed, there is no “themselves” when crossing the line from badge-wearers to regular guys.
Mike’s fear, that some reduced value “sensationalist” speech will come back to haunt all of us, blawgers included, strikes me as very real. It opens the door to enormous mischief, where it may be left to judges to decide whether speech is sufficiently “important” to be worthy of protection as balanced against something as amorphous as good taste. Sensationalism is rampant, often used to grab attention to make a point.
But then, do people who come into possession of such sensationalist and morbid photographs as those of the decapitated Nikki Catsouras solely because of their official capacity as police officers get to switch hats at will and enjoy the right free speech that exists to protect us from the government? That’s a very different question. I would distinguish the roles, and hence the protection, offered by the First Amendment, leaving individuals with the full protection they were meant to have while stripping the government, and its officials, of protection for abusing their positions. The government doesn’t need free speech protection. It has the guns.
There was no need to craft an exception for sensationalist speech that will likely inure to our detriment eventually just to find a way to make these two CHP miscreants liable. There was a better way.
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This case reminds me of the Lynne Stewart case. Stewart helped to disseminate a statement that the Blind Sheikh withdrew his support for a ceasefire, although this did not mean that he thought the ceasefire should have been called off. At any rate, Stewart issued a press release with the information, and that was central to her case.
I would argue that the police officers do not relinquish their role as citizens just because they are police officers. They may have acted in this capacity when releasing the photos in question on the internet. A newspaper would have considered its reputation in releasing such photos and perhaps even its liability if the photos were disturbing. These officers could have been sued by a party who was adversely affected by seeing the photos. That would have been a better way to address the issue than to censor the officers. If the officers’ actions were seen as improper by the police department, appropriate disciplinary action would have been the proper way to address the issue.
I have to disagree. I think the POs still maintained First Amendment protection, but did not have protection against retribution levied by the PD for violation of standards exceeding prudent behavior and bringing disrepute on the department.
When I was assigned to the US Embassy in Saudi Arabia, I was given by a friend/contact (yes, it muddies the waters) photos of dismembered terrorists and victims of the 2003 bombings of residential compounds in Riyadh.
I maintain that I could have reuttered those photos (assuming copyright clearance), but that it would have been in exceptionally bad taste to do so.
Bad taste is protected by the 1st. My job certainly would not have been protected.
Perhaps it’s just from living in different cultures, but it’s very clear to me that there are widely and wildly different standards on what is ‘puke-worthy’. I recall photos from Indian newspapers, for example, that featured (in a two-page spread, no less!) the left-overs after tigers had their way with villagers. Then there were the photos of the bodies of a couple dozen inmates at a mental institution, still chained to the floor, after a fire swept through. Definitely not what I expect over my breakfast coffee.
The problems come when enforcing a law relies on taste. Whose standard shall we make the legal definition: My taste or your taste? ‘Community’ taste? What about standards which change over time?
I definitely recall sitting in barbershops in the ’50s, boggling over the true crime magazines with photos of slain mobsters. We don’t see those in print much anymore. Instead, one would have to do a Google search. Is the standard higher now, or lower? Should that standard be the bottom line for 1st Amendment protections?
As a general rule of thumb, I think that if an issue devolves to a matter of taste, then the law should largely be out of the picture.
The suit was brought by Catsouras’ surviving family, and has nothing to do with departmental discipline. But since you belief that the POs should maintain First Amendment protection while performing their official function, do you believe that they have a constitutionally protected right to use racial epithets when arresting black men?
As for the puke test (which is not really a test, by the way), we need not look to the stadnards of India for puke-worthiness. We have a number of such tests in American law, and we tend to use our own standard of reasonableness rather than Delhi or Riyadh. So it’s really not the obtuse an issue.
I am in agreement with what SHG replied last.
A skinhead has the right to use racial epithets in a public speech, because he is protected by the 1st Amendment.
If a cop, politician, judge, or any public servant makes the same speech he’ll be reprimanded very quickly for it.
I am retired military, and had all of my rights intact during my 20 years of service, but you can bet had I made the same speech as the skinhead during that time, I would have faced some form of punishment.
When you agree to wear some type of government garb you are a representative of the government until such a time as you retire that garb.
You’re absolutely correct: I don’t need to cross any borders to find standards of decency. I just have to get inside heads of people who are or might or could be offended.
Personally, I’m not offended by a photo such as described. I’ve attended autopsies, I’ve photographed accident fatalities, all as part of work. I don’t puke very easily any more. I’m unfit, obviously, to be the mark on which the standard is set. But a puke-worthy standard still seems to be pretty idiosyncratic. I’d like something a little more definable before we challenge constitutional rights.
And yes, I do believe a cop has a constitutional right to utter racial epithets. That cop, though, has no right to keep his job. As I stated above, the cops sending these photos out certainly should have lost their jobs. I think, however, they are constitutionally protected from civil liability.
We’re then left with a twofold problem. At the first level, we are left to the mercy of the cop’s superiors to determine whether, and what, discipline if any should be imposed. As we know historically, from cases far worse than this, the result is usually that no discipline is imposed. They are exceptionally brazen about sweeping problems under the rug.
The second level is that victim of the cop’s racial epithets, who is entitled to equal protection under law from the actions of government agents, has no recourse. It’s not much of a right if you can’t do anything to enforce it.
I’m not a 1st Amendment absolutest (no, really!), but I think it covers a lot of territory.
I can’t find where it allows prohibiting hurt feelings or diminishing pride in one’s ethnic/religious/gender/whatever group. I don’t have a right to not be insulted beyond whatever nebulous limit the “fighting words exception” might encompass.
No, bad or corrupt policing should not be able to hide behind free speech. But we’re talking about bad policing here. Even without epithets, bad policing goes on. That it is not corrected is not due to the content of a cop’s speech. Bad cops should be taken off the force.
A police force could certainly point to a cop’s racial slurs as a reason to get rid of a cop. I’ve no problem there. That’s actually where the “government as employer” facet of management of expression is to be found. It does not lay in punishing the content of the expression so much as it does on preserving the ability of the police agency to function as an entity trusted by all it is supposed to serve.
As for the person offended, he’s going to have to be satisfied that the SOB cop got fired. And maybe that his buddy cops took a lesson from it.
Most of the comments thus far seem to fall into the same vein as Scalia’ “New Professionalism” argument. The problem is that there is almost no evidence that it exists. If there were in fact a working system to discipline LEOs many of the constitutional issues would not arise–the fear of job loss or other discipline would be sufficient to restrain their activities. But the overwhelming evidence is that there is no such system of discipline. Yes, a few high profile cases result in action, but they are very much the exception.
That’s the point. He doesn’t. As for hoping that government will just take care of its own problems in house, properly, there are many, myself included, who really don’t want to hold their breath waiting for that to happen. Indeed, the point is largely that government doesn’t clean up its own act, which is why these problem occur on a constant basis.
The good news is that we have laws so that we don’t have to rely on the cops to police the cops. If you can’t find where cops can’t engage in racist conduct, check out the Equal Protection Clause and Section 1983. They’re there. You’ve got a whole bunch of rights to not have to suffer at the hands of the government, including cops, providing the courts allow us to enforce them. But if the best answer you’ve got is to expect the police to clean up their own mess, we’re doomed.
By the way, it would be far easier for everyone to follow discussions if you use the “reply to this” button rather than post a comment as new.
(Sry about the formatting)
I do agree the cops do a bad job of policing their own. That’s a serious problem and it needs fixing.
Calling down the weight of an unnecessarily expanded ‘understanding’ of a constitutional right, though, is the classic sledge hammer v. fly swatter. It might get the job done, but it damages other rights (including free speech) while doing so.
I simply do not see Sect. 1983 as applicable. What right is there to go through life uninsulted or unoffended, even if by a state agent? Not nice, definitely. Worth complaining about and seeking the idiot’s job.
If the cops were to do their law enforcement differentially, according to the race of the offender/victim, then sure… that’s a clear case of both unequal protection and deprivation of rights. Name calling, though ugly and punishable through other means, just doesn’t seem judicable–again, excepting ‘fighting words’.
I guess we are at a standoff here, drawing the free speech line at different places.
Fair enough. Ironically, I am fairly strong on First Amendment rights, but see it differently when the actor is in a state role versus an individual role. What we do on our own is different from what we do in our official capacity. That’s my distinction, but it’s fair enough that others may disagree. Aside from that, I rarely support other rights trumping freedom of speech.
I don’t actually see that as a particularly difficult position. People can wear various hats during their life, in this case your citizen of the republic hat gets to publish offensive material while your police hat gets to act like a police officer and never the twain shall meet.
I’ve always understood that the purpose of having a written constitution as the highest source of law in a country is to provide a limit to legislative and executive actions. If the Constitution can be used to let police officers misbehave at work it seems to have failed.
Some people have greater faith in the government to control itself than we do. It would be nice if it were so.
Exactly. When one can enjoy the citizen’s protections while wearing the government hat, and use it as a means of engaging in impropriety, than the limitations on government cease to have meaning and are rendered ineffective. Good use of the hat analogy.
My bright-line question on this: “Would the photos have been public records if requested by a civilian or journalist?” If so, the free speech aspect applies – they just forwarded photos that were a public record. If not, the officers were abusing their capacity. I don’t know the law there, but in Texas the photos would become public once the criminal case is closed.
The “sensationalism” test, I agree, is pure BS.
I should add that while a criminal case is open, in Texas police MAY release information at the discretion of “the governmental body or its officer for public information,” so under Texas’ law, if the case was still open, the question basically would become, “Do the officers’ supervisors support them in the decision?” If so, it’s release would be legal. After the case is closed, its release would be required. No exceptions for sensationalism.
It may have been unclear, but this wasn’t a criminal case and this isn’t a question of what could have been obtained from a court file. While I’m unfamiliar with the Texas Freedom of Information Act, most FOIA/Ls exempt police investigative files, and this would not have been available to civilians or journalists as it involved photographs of the crash taken by police for the purpose of their investigation. In other words, it’s an entirely different scenario than in a criminal prosecution or court file.
A recent Tennessee decision in the Jeremy Wooten case gave me pause over similar issues. There, a paramedic responding to an accident scene took photos of the young dead driver and later used those photos as part of a presentation he gave in schools to encourage safe drivers. A friend of the dead boy recognized the photo and ran out of the room, etc. The parents sued over invasion of privacy, etc.
As part of the court’s ruling, the court noted that there is no expectation of privacy in public. I didn’t like that decision because unlike the laws cited in this CA case, HIPAA protections *do* extend after death and the paramedic was on the accident scene as a HIPAA-covered entity.
If a nurse had taken a picture of a dead patient in California and posted it or circulated it, it would have violated HIPAA. So why should CA cops be allowed to circulate photos of dead aided that they take in the course of their work?
I find this whole thing very confusing and I’ll buy you a cup of cyber-coffee if you can de-confuse me on this one.
Want to be even more confused, consider the Stony Brook University medical student photo with a cadaver posted on Facebook.
The lack of clarity, or sound and consistent reasoning, coupled with the opportunity to publish things on the internet these days, makes for a very confused and difficult situation. HIPAA be damned.
The files I’m talking about in Texas that are public are precisely the “police investigative files.” Here those become public information after the case is completed, including photos, notes … the whole shooting match. Whether they’d be available to journalists or the public depends on when during the process they ask for it.
Not all investigations involve criminality or result in prosecutions. Some investigate for the purpose of ascertaining information, or to rule out the occurrence of a crime. Others, such as an autopsy, are requirements for a death by unnatural causes, even if there is no crime involved.
I’m not sure how these fit into the Texas statute, but I wouldn’t be surprised if it turns out differently than other parts of the country. That seems to happen a lot. It’s one of the problems using Texas as a measure for how something is done, since Texas tends to have its own peciliar ways that (ahem) others places prefer not to emulate.
But this does raise another issue: Even if a citizen or journalist could obtain copies of something like the Catsouras photos, is there any difference that they came from a cop who obtained them in the course of his duty? Does the timing matter in that they couldn’t have been obtained at that stage even if there had been a subsequent criminal prosecution?
That’s one of the issues, all right. If a citizen takes the photo and publishes it, it’s clearly free expression. But if the cop publishes it, it’s a civil and possibly a criminal offense?
I do realize that the state (or those acting as agents of the state) do have to toe different lines on many matters. The cop’s publishing these particular photos likely violate department procedure and could/should lead to departmental action up to and including firing.
But if Joe-with-an-iPhone can publish the photos without fear of civil or criminal sanction, isn’t it a bit too unjust that the cop could? We’re talking of a traffic accident on a public way here, where anyone might have had access. (I don’t know the particulars as to place and time, so perhaps this isn’t a factor.)
A morgue attendant selling or otherwise publishing autopsy photos (if those are considered privileged) is a different matter. There, there is no question that he was abusing his official office. Firing is a good start; criminal and/or civil sanctions could follow and I wouldn’t utter a peep.
If you read the caption of the case, you’ll see that it wasn’t the California Supreme Court, but the 4th District Court of Appeal which issued this decision. Kind of an important point…
A citizen has a right to freedom of expression, the policeman has a statutory duty not to post the gory photos of dead people he comes across when he’s out on patrol. If you look at it that way it’s pretty easy. You give up some of your freedoms when you gain the ability to arrest folks. It’s like how we don’t let the police stand on the bonnet of their cars with a megaphone and extol the KKK. It’s protected free speech for everyone else but not for a G-man. I think I’m perfectly happy treating people differently according to their legal status.
It gets difficult should he come across a decapitated woman while he’s out driving as a citizen and decides to take a photo, I’d personally say he’s probably allowed to put that image on the internet because he’s doing it as a private US citizen and gets. I just say that because I’m a Scottish law student and think the US Constitution is a kind of magic, though.
Thanks for pointing that out. It’s been corrected.