The Battle between the First and the Second Amendments

There is a contest going on in America between the First and Second Amendments as to which has more favor in our court system. It’s a face off between gun violence and freedom of the press and it involves individuals, giant corporations and standing armies.

Oakland police officers slam videographer to the ground, making his job difficultOakland police officers slam videographer to the ground, making his job difficult

The picture above is from a recent demonstration in Oakland, CA, following the manslaughter conviction of a white police officer who claimed he had meant to shoot a young black man with his Taser but grabbed the wrong item from his belt. That whole incident was “shot” by two citizens with cell phones.

Deciding what trumps what in this kind of conflict between rights is an issue relegated to the Supreme Court, an aloof entity accountable to no one. The question that should concern every American is how this court and those below it have their fingers on the scale when it comes to the first two amendments of the Constitution.

A New Year’s subway shooting

In the morning hours of New Year’s Day 2009 in Oakland, cell phone videos shot by two subway passengers revealed several transit police officers engaged with three young black men on the subway platform following an apparent altercation on the train. Two officers are seen forcing 22-year-old African American Oscar Grant, who had been sitting against the wall, face-down onto the concrete platform.

One officer was at his head, and 27-year-old white Officer Johannes Mehserle straddled him from behind. Then Mehserle raises up, reaches to his belt, pulls out his pistol and — pop! – shoots Grant in the back.

“You shot me!” witnesses said Grant exclaimed in disbelief. Grant died later in the emergency room.

Minutes before being shot, Grant sat against the wall and took his own cell phone image of Mehserle, in which the officer is shown pointing his Taser at Grant. This means Mehserle must have subsequently holstered his Taser to wrestle Grant, with the other officer, from a sitting position to a face-down prone position, only then unholstering his pistol and shooting Grant in the back. Watch the cell phone video of the shooting yourself.

The case is an amazing collision of two phenomena: the omnipresence of digital cameras and the acceptance of a gun and its “more humane” cousin, the Taser, as early problem solvers in a chain of options available to police.

The officer was initially charged with second-degree murder, but in the course of the trial the charges were reduced to involuntary manslaughter. It was apparently a first in California as far as convicting a cop for a killing at all. Still, the reduction of the charge angered many Oakland citizens and led to demonstrations.

Who is a real journalist?

The highly respected George Polk Award in journalism this year went to the anonymous videographer who videotaped a dying young woman on the streets of Teheran after she was shot in the head during a demonstration for “freedom” in that country.

That anonymous videographer, we must presume, had no official state-sanctioned press credentials — just a small video camera and an internet connection to release the video to the world. The western world, in turn, gobbled it up and broadcast it everywhere: the brutal death of a very attractive young woman by elements of the hated Iranian state. It was dynamite.

Oscar Grant did not get that kind of treatment. For some, he was black and assumed to be a “criminal,” so the officers were just doing their duty. Others assumed he was innocent. They were the ones in the street.

The young man in the photo at the top of this article being slammed to the pavement is holding a video camera large enough to make it clear he intends to seriously document the demonstration. But does that make him a journalist?

We can surmise he was slammed to the ground and, probably, arrested, for one of two reasons: One, the officers were angry that he was documenting their behavior or, two, they were just slamming to the ground anyone and everyone they could get their hands on as the event devolved, on their part, into a police riot. (In defense of the police, they did have to deal with the breaking of windows and other acts of fury.)

We cannot know everything, but it seems clear to me, a blog journalist, tha these cops are violating this man’s First Amendment Constitutional rights, since by slamming him to the roadway they are “prohibiting the free exercise … of the press.” The First Amendment very specifically says the police can’t do that. It’s illegal — a crime.

Some might say the cameraman is not “the press,” because he does not work for a corporate newspaper or TV station and does not have a government-sanctioned badge. That is certainly the excuse used these days by police, who claim that “the press” is only the corporate media, the networks and the big city papers. People with government-issued press passes.

The anonymous Iranian videographer did not work for a corporate or officially sanctioned Iranian press entity. And yet the jury for the George Polk Award felt he/she was a legitimate journalist in this internet age.

Since our right-wing Supreme Court justices are supposed to be “strict constructionalists” who firmly adhere to what the framer’s were thinking, it’s worth noting that “the press” at the time the First Amendment was written was a pretty rudimentary affair centered literally on a printing press and maybe four-pages long.

In this sense, the original “press” in America was more like a several-person blog like This Can’t Be Happening than a major, corporate TV network or large city newspaper. Ben Franklin was not that different from a modern blogster.

Guns and cameras

So, consider for a moment the “strict constructionalist” Supreme Court’s recent ruling that the Second Amendment was about the sanctity of individual gun ownership and not about the debate on-going during the framing of the Constitution about militias versus a standing army.

This ruling followed the much-ballyhooed story of strutting tea baggers with Glocks on their hips at Obama rallies that featured signs calling Obama a socialist and a Nazi. No cops were slamming them to the pavement. Of course, this is a silly comparison … but it’s not that silly.

We now have a right-wing Supreme Court that is “activist” and “liberal” in how it interprets the Second Amendment to the advantage of the NRA and nutty gun owners, while, at the same time, the court is equally “activist” but now “conservative” in interpreting the language of the First Amendment, limiting and pinching it to the point of overlooking government institutions like the police who “prohibit the free exercise … of the press” all the time.

At a demonstration at the Army Experience Center last year at a mall in Philadelphia, a reporter/photographer from Op-Ed News, Cheryl Biren, was physically restrained and arrested, despite her informing officers that she was there to document the demonstration for an online news site.

Weeks later, just before her trial, police and prosecutors dropped all charges against Biren. They thus accomplished what they really wanted. One, they effectively “prohibited” Biren from the “free exercise” of her craft and, thus, pre-censored any embarrassing photos of police officers arresting people. And two, by dropping the charges, they precluded any embarrassment in court concerning the blatant violation of her First Amendment rights.

Of course, Biren could have pursued a First Amendment lawsuit in federal court, but what attorney in his or her right mind would take on such a Quixotic case, destined, if lucky, to end up in the Roberts Supreme Court, where the First Amendment seems to apply only to the rights of corporations to “speak” with their money in political campaigns?

The fact is, an interpretation of the First Amendment as expansive and liberal as the one given the Second Amendment is impossible to conceive of these days. Instead, constraints are piled on journalism, and brave journalists dedicated to the truth are turned into criminals.

Consider the situation on the Gulf Coast where journalists are restricted from access and threatened with felony charges and $40,000 fines to prevent them from obtaining embarrassing photos of oil damage and information the scale of the damage.

The danger to the government posed by unfettered digital cameras, of course, became very evident in the case of the torture at Abu Ghraib.

The video of an Apache gunship killing Iraqis recently posted on the web by WikiLeaks was material General David Petraeus had said he would release in order to clarify the controversial killing event and to support the military’s storyline at the time. It was no surprise he never released the video.

Now, a courageous, morally-troubled enlisted man is being held in secret at a US military facility in Kuwait, where he is being charged to the hilt for releasing that very same video, which embarrassed the military by showing Americans the real nature of the high-technology war being fought in their name. Too much of stuff like that and more people might demand that the war be stopped.

Let’s not be naive. The First Amendment is being squeezed into impotence these days to protect our national security state, top to bottom, from embarrassment and shame more than over the issue of national security.

In the hi-tech world we live in, the open society the founders wrote the First Amendment to protect is now seen as a threat by our courts and government, while the arming of the nation from top to bottom is not. Information is dangerous to a national security state, while guns, and now things like Tasers, are seen as keeping it under control.

Fate put Oscar Grant and Officer Mehserle at a point of convergence in the friction between the Constitution’s first two amendments. The good omen in all this is the fact, despite the law, the power of the camera was not thwarted and resulted in open, democratic discussion and at least some accountability for irresponsible police use of a firearm.

The downside is, Grant is dead.