Some advice for the beleaguered and backward states of Illinois, Massachusetts, et al.: If police are not obliged to ask our permission before recording their public encounters with us, then we should not be obliged to ask their permission before recording our public encounters with them. That states generally dominated by so-called progressives should be so insistent upon asymmetric police powers and special privileges for government’s armed agents is surprising only to those who do not understand the basic but seldom-spoken truth about progressivism: The welfare state is the police state.
Why Illinois Republicans are on board is another matter, bringing up the eternal question that conservatives can expect to be revisiting frequently after January: What, exactly, is the point of the Republican party?
Illinois is attempting to resurrect what the state’s politicians pretend is a privacy-protecting anti-surveillance law; in reality, it is the nearly identical reincarnation of the state’s earlier anti-recording law, the main purpose of which was to charge people who record police encounters with a felony, an obvious and heavy-handed means of discouraging such recording. Illinois’s state supreme court threw the law out on the grounds that police do not have a reasonable expectation of privacy when carrying out their duties, though police and politicians argued the contrary — apparently, some part of the meaning of the phrase “public servants” eludes them. The new/old law is, by design, maddeningly vague, and will leave Illinois residents unsure of which encounters may be legally recorded and which may not.
Here is the solution: Pass a law explicitly recognizing the right of citizens to record police officers. It is important to note that such a law would recognize a right rather than create one: Government has no legitimate power to forbid free people from using cameras, audio-recording devices, or telephones in public to document the business of government employees. The statute would only clarify that Americans — even in Illinois — already are entitled to that right.
This is not a theoretical concern: A woman in the great progressive bastion of Massachusetts is very possibly prison-bound for the crime of turning on the audio recording feature of her mobile phone when being arrested.
While there is much to object to in the notion of justice as fairness, people instinctively object to lopsided distributions of rights and powers. We have all experienced this: If you’re a day late paying your cable bill, the company will impose late fees — but if your service is interrupted because of errors or neglect on the company’s part, it does not pay you. Change an airline ticket and you can expect to pay a couple hundred bucks; if the airline changes your route, or simply cancels your flight for some odd reason such as a failure to get a flight crew to the airport (seriously, U.S. Airways, how does that happen? You guys have airplanes!), it does not incur a similar penalty. At McCarran Airport in Las Vegas, a video loop featuring Carrot Top, who still exists, reminds travelers not to make jokes at the security checkpoint, even as the TSA agents laugh it up literally (Literally, Mr. Vice President!) at our expense.
Whether we’re dealing with some particularly nasty corporate specimen such as a bank or an insurance company, or dealing with government, we naturally resent it when things are arranged such that all of the obligation, hassle, and expense falls on us, while the other party holds all the power.
If everything we say can and will be used against us in court, why can’t everything the police say be used in our defense?
There is no legitimate reason to stop citizens from documenting their encounters with police. The only rationale for doing so — not that the politicians will ever say so — is to eliminate evidence of police misconduct before it exists, giving police forces greater freedom in bullying and browbeating citizens who may or may not have committed a crime. While it may be the case that only a tiny minority of police officers engage in such misconduct, such abuses are not really all that rare, and not nearly so rare as we would like them to be.
The Michael Brown case has brought out an unfortunate tendency found among certain conservatives, the assumption that the only thing to do when a police officer gives you an order is to comply — immediately, obediently, and meekly. But the thing that conservatives wish to conserve is the American tradition, of which boot-licking is not a part. It is the nature of the political beast that even in a constitutional republic, our rights have to be actively defended every minute of every day. Recording our encounters with the agents of the state is one way to do that, a sensible one that if made universal — for example, by mandating police body cameras — would do a great deal to demystify events such as the Michael Brown shootings, to say nothing of the million less dramatic encounters between citizen and state that transpire every day.
Illinois should get its act together and recognize that its police serve its citizens, not the other way around. And the rest of the country should, too.
— Kevin D. Williamson is roving correspondent at National Review.