What kind of right is the right to film police?

It is pretty clear to me that there ought to be some kind of right to photograph and film police, especially arrests. And yet, at least one US District Judge Finds no First Amendment Right to Film or Photograph Police:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. (Fields and Geraci v. City of Philadelphia et al)

Here’s the problem: the First Amendment protects expressive conduct. We often think of the main role of the photographer as quietly observing and recording; their expressive conduct comes later, when they publish that record. Of course, there’s some reason to think that that required action is thus equally-well protected: I can’t publish a video of police if I’m not allowed to film a video of police.

But we don’t really think this is a generic right. We usually assume that ordinary folks have some right to their likeness and some expectations of privacy. Police are special, and we need enhanced rights to record their activities. Yet the First Amendment might not be designed to cover that special instance. I suspect that the right to film police would best be understood as one of those old penumbral rights no longer in fashion: a living update of the implications of the First, Fourth, and Fourteenth.

I think of filming the police sort of like I think of election monitors: the right to free and fair elections occasionally requires an ancillary right (to monitor elections and note violations) to preserve that primary right to vote. This is always a strategic or practical question, though: you wouldn’t need election monitors of the ordinary sort in Oregon, where all voting is done by mail. Under those circumstances, it would be odd for an election monitor to shove his way into your living room to make sure your postal ballot was properly prepared. But we do need some form of accountability in these matters, and under the current circumstances, photography is a good check on police abuses.

You can’t guarantee due process, reasonable search and seizure, or free expression of dissent without the ability to record interactions with police. And yet, this would fail any originalist’s test, for how can there be an implied right in an 18th century document that can only be exercised with 21st century technologies? It’s not like firearms or the printing press, where some version of the technology existed and it has merely become more effective.

Alternatively, the courts should recognize a First Amendment right to observe and record police as a variety of assembly. This, though, would subject it to much more exacting restrictions on the time, place, and manner of the recording. Legislatures might even be able to curtail filming police arrests entirely under this understanding of the right! Consider that even with a constitutional right to assemble, a city may appropriately require permits for rallies and even restrict the spaces where protests can occur. Would we accept restrictions on observing and recording police such that only credentialed journalists could do it? I think not: the power of the camera phone is that anyone can act as a citizen journalist when they see police engaged in potential misconduct.

Of course, my real problem with original meaning arguments is that they assume the framers were godlike or genius-like in their pronouncements. They certainly weren’t. We should have a lot less respect for them, a lot less of a tendency to call them Founding Fathers with capital letters. They were men, and venal ones. Most of them had slaves, and large parts of the Constitution and the Bill of Rights were designed to help them keep their slaves. When we help people draft their own constitutions–like in Iraq or East Timor–we always make sure they don’t repeat the model in the US Constitution, because it’s antiquated and usually leads to massive constitutional crises in short order. Most of US politics is basically an elaborate work-around for that; a patch on a patch on a patch of broken code.

That’s why I hope that the Supreme Court will eventually recognize filming the police as an act of expressive conduct worthy of protection under the First Amendment: not because that’s the best analysis of such cases, but because our system increasingly needs such “cheats” just to function.

Partisanship Has Reduced Our Efficacy as Citizens

I’ve been thinking a lot about the new evidence that partisan distrust and even hatred now trumps racial hatred. Consider the now-famous Iyengar/Westwood study, “Fear and Loathing across Party Lines: New Evidence on Group Polarization.” Iyengar and Westwood showed that partisan identification has ceased to be a wholly ideological or instrumental self-description. It’s gone from identification to identity: it’s become an affective relationship that justifies exclusions, bias, and even outright prejudice.

Asked to award a scholarship to fictional high school seniors with equal qualifications, Democrats and Republicans awarded a seniors who had evidence of the opposing party affiliation among their qualifications only 21% of the time. Even when the scholarship candidate from the opposing party was more qualified, Democrats awarded the scholarship to Republican-affiliated high school seniors only 30% of the time, while Republicans awarded the scholarship to more qualified Democrats only 15% of the time! Alongside other evidence from economic games and implicit association tests, this enmity towards now appears like a very serious bias, one that most people almost certainly encounter as a part of their everyday lives.

I just can’t get my mind around the idea that people would feel comfortable privileging members of their party in scholarship competitions. It feels pretty dirty, and it suggests the kind of unwillingness to associate and collaborate that will be a real challenge to democratic public work in the years to come.

It used to be pretty common to remark that racial hatred was cultivated by elites who themselves didn’t feel bigotry deeply in order to prevent the alliance of working people whose interests were closely allied. By preventing workers from developing solidarity, racial mistrust allowed elites to create competition and legitimate violence. And yet everyone seems to have forgotten that lesson now that hatred based on partisan identity is at stake. Elites don’t care about partisan identity nearly as much as ordinary folks now do. Wonks and bureaucrats are partisan but usually get along with their opponents quite well. Technocrats agree on more than we disagree on. But citizens need to be able to work with their neighbors on matters of shared concern even when they don’t agree on federal immigration policy, firearms, or the culture war.

What’s more, partisan identification isn’t even a particularly good guide a person’s ideological positions on those matters. Precisely because most districts are safe districts for one party or another, voters’ experiences of the parties do not necessarily line up with their beliefs about specific policy issues. Ideological consistency of voters has never been particularly strong: it’s growing, but from a very low base.

Even in a world where partisans will deny each other jobs and scholarships, only 56% of Democrats hold mostly liberal views, and only 45% of Republicans hold mostly liberal views. If you expect true ideological consistency from partisans (the sort of thing that political philosophers try to achieve, maybe) then you’ll find partisan identification even less helpful: only 23% of Democrats and 13% of Republicans are consistently or rigorously liberal or conservative. So what justifies the enmity?

I don’t think it can be justified, and I think we need to aim a healthy skepticism at people like Jonathan Haidt who diagnose liberal and conservative brains. What’s left is culture, and our cultures are increasingly trying to justify and legitimate partisan differences in just the same way that they’d justify racial differences or gender differences or class differences. We can’t let that happen.

But what should we do, what should you and I do together, to prevent the growing partisan hatred? Here’s what President Obama–the Citizen-in-Chief–said during the State of the Union:

The future we want — all of us want — opportunity and security for our families, a rising standard of living, a sustainable, peaceful planet for our kids — all that is within our reach. But it will only happen if we work together. It will only happen if we can have rational, constructive debates. It will only happen if we fix our politics.

A better politics doesn’t mean we have to agree on everything. This is a big country — different regions, different attitudes, different interests. That’s one of our strengths, too. Our Founders distributed power between states and branches of government, and expected us to argue, just as they did, fiercely, over the size and shape of government, over commerce and foreign relations, over the meaning of liberty and the imperatives of security.

But democracy does require basic bonds of trust between its citizens. It doesn’t work if we think the people who disagree with us are all motivated by malice. It doesn’t work if we think that our political opponents are unpatriotic or trying to weaken America. Democracy grinds to a halt without a willingness to compromise, or when even basic facts are contested, or when we listen only to those who agree with us. Our public life withers when only the most extreme voices get all the attention. And most of all, democracy breaks down when the average person feels their voice doesn’t matter; that the system is rigged in favor of the rich or the powerful or some special interest.

Too many Americans feel that way right now. It’s one of the few regrets of my presidency — that the rancor and suspicion between the parties has gotten worse instead of better.


So, my fellow Americans, whatever you may believe, whether you prefer one party or no party, whether you supported my agenda or fought as hard as you could against it — our collective futures depends on your willingness to uphold your duties as a citizen. To vote. To speak out. To stand up for others, especially the weak, especially the vulnerable, knowing that each of us is only here because somebody, somewhere, stood up for us. We need every American to stay active in our public life — and not just during election time — so that our public life reflects the goodness and the decency that I see in the American people every single day.

Are gun suicides gun deaths?

After the President asked news organizations to compare deaths by firearms with deaths from terrorism, many did. It’s pretty striking, here’s the chart from CNN:



But not all of the charts looked the same. Vox’s chart excluded suicides, and thus came to a much smaller (though still striking) result:

gun homicides v terrorism deaths

And this raises an important question. Should we include suicides with a gun in our calculations of gun deaths? Asked that way, the answer seems obvious: of course they should count, a gun death is a gun death. But I think there are important reasons to exclude them. Suicides make up 2/3 of all firearms deaths, but those deaths are probably not preventable by restricting access to guns.

Here’s the argument in outline: people commit suicide with guns because that’s the dominant image of suicide in our culture. Serious restrictions on gun control would change the dominant image of suicide in our culture, and potential suicides would choose different methods.

And yet there’s plenty of evidence to the contrary, so it’s important to think that evidence through. In many cultures, targeting the means of suicide led to major reductions in suicide. We know that when we interview survivors, we find that 70% spend less than an hour planning, so they’re mostly using ready-to-hand methods. Britain reduced its suicide rate by changing the kinds of gas they used to power their ovens. San Francisco hopes to prevent suicides at the Golden Gate Bridge with a steel net.

And yet there are many differences between survivors and successful suicides. Successful suicides plan more carefully, and for longer, choosing deadlier methods. Successful suicides are generally older and maler than survivors. In short, successful suicides seem to mean it more than unsuccessful ones, they make determined choices based on social facts rather than psychological whims. So they won’t be deterred if forced to change methods; we need to change the social facts instead!

The National Academies of Science concluded much the same thing when last they evaluated these questions: “Some gun control policies may reduce the number of gun suicides, but they have not yet been shown to reduce the overall risk of suicide in any population.” The difference is between micro-reductions (fewer deaths at the Golden Gate bridge) and macro-reductions (fewer deaths per 100,000 people.) We can make lots of changes at the margin without touching the infra-marginal causes of suicide, which are likely not tied to method.

This is an example of Simpson’s Paradox: you can reduce the marginal propensity to commit suicide, even make small, local reductions in those numbers, but without affecting the overall rate of suicides. And the same thing goes in the opposite direction: increasing access to guns might lead to short-term and local effects on suicide, but we compensate in various ways. Otherwise, it would be hard to make sense of the fact that our suicide rate is quite low while we have more guns than anyone in the world. We’re in the middle of the pack for the OECD, and France, Finland, and Japan all beat us:

suicide rates

Why is the US suicide rate so low, given the overwhelming number of guns we have? Guns seem to massively increase our homicide rate but not our suicide rate, so what’s going on there? For the largest group of suicides: people basically understand the lethality of the method they choose, and they use less-lethal methods if they don’t want to succeed. So suicide success mostly tracks desire, not access.

Around the world suicides use different methods:

“Poisoning by pesticide was common in many Asian countries and in Latin America; poisoning by drugs was common in both Nordic countries and the United Kingdom. Hanging was the preferred method of suicide in eastern Europe, as was firearm suicide in the United States and jumping from a high place in cities and urban societies such as Hong Kong Special Administrative Region, China.”

So while of course, there’s some feasibility to reducing access to pesticides and firearms, there’s little hope of eliminating access to drugs, high places, or potential nooses.  Britain removed a major non-violent method, and saw serious reductions. We can do the same by targeting non-violent suicide methods. But the big group of suicides have a high transition rate among violent methods (hanging, firearms, jumping) while the smaller group of suicides have low transition rates among non-violent methods (ovens, drug/pesticide poisoning.)

So you can best reduce suicide by regulating access to pesticides and drugs, but regulating access to firearms leads to substitute violent methods. There’s even the risk that though relatively few people will transition from non-violent to violent methods, they’ll do so at a much higher success rate. Britain avoided that fate with its coal gas oven transition, but further targeting prescription drug poisoning might yield different results.

There’s nothing wrong with trying to make suicide more difficult; I endorse strategies that might force rethinking, like waiting periods. But I’m not convinced it’s possible to deter the determined. So in that sense, we should probably treat gun suicides more as suicides and less as gun deaths. The best evidence is that policies designed to reduce our (already low) suicide rate will target social facts, about masculinity, bonding social capital, mental health and self-worth, while the policies best tailored to reduce our (quite high) homicide rates should target a single variable: access to firearms.

An American With a Gun Kills Students, Again

I have a two year old daughter, and I’m overwhelmed every time this happens with fear and anger. I teach at a university, and I feel special fear every time there is an active shooter reported, though I quickly cover it with bravado and statistical arguments. (There were two on my old campus in a single semester a few years back.) Guns make me scared, I don’t want to be anywhere near them. I even think it’s creepy that police officers carry them.

And yet, I’m never very happy with the way these discussions go. More than perhaps any other policy discussion, there’s a palpable sense of paralysis; I have more hope for a basic income guarantee than for substantial and effective gun control. For one thing, everyone who talks about gun control of any sort has to recognize that most there are almost as many guns as people in the US. The horse has left the barn, Pandora has opened the pithos, the djinn has escaped the lamp, etc. Plus it’s impossible to amend the 2nd Amendment under anything like current partisan political conditions. So our response has to be geared towards that. It’s got to involve action and organization and policy savvy.

The NRA’s power is not primarily money: it’s a large, active, and single-issue-voting membership list. The money is comparatively small and irrelevant: all you can do with money is buy ads to affect votes. The NRA already *has* votes, and gun control advocates don’t. For instance, most liberals who want more gun control would still be happy to have Bernie Sanders as President, despite his stance on guns.

So when the President says we should become single issue voters, he’s saying we should choose guns over finance sector regulation, campaign finance consistency, real attention to inequality, pro-choice judges, funding for Planned Parenthood, climate change, and many other things that matter.

That’s what a single-issue voter is: would you vote for a member of the other party if she had a stronger pro-gun-control record than the incumbent from your party? Because NRA members will, even if they mostly don’t have to: they will primary out a viable candidate and accept a loss, which comes to the same thing.

Despite the fact that gun control proponents are in the majority, we just don’t want it enough. We have a minor desire to see fewer mass shootings; gun owners have a strong desire to support untrammeled access to guns. Forget what people say: look at what they do. And we just don’t do much about guns.

And even if we did take that single-issue stance, there’d still be a gun for every man, woman, and child in the US for decades. So we’ll continue to be a country where assholes with guns kill our children and neighbors. And Black men will continue to die at twice the rate of whites, because we talk about school shootings and automatic weapons, but not handguns used in assaults and homicides.

I want to hope that someone will give an answer to the question of what we should do–what my readers and neighbors and friends and I should do–to actually change the terrible, atrocity-ridden status quo. And yet a sober calculations suggests that despair and impotent anger is the appropriate response. The love and hope we nurture can’t reach these issues: the guns will always be a background condition of our lives, a potential risk, yet–if we are white and comfortable–a statistically unlikely one.

It’s like Camus describes in La Peste:

And, indeed, as he listened to the cries of joy rising from the town, Rieux remembered that such joy is always imperiled. He knew what those jubilant crowds did not know but could have learned from books: that the plague bacillus never dies or disappears for good; that it can lie dormant for years and years in furniture and linen chests; that it bides its time in bedrooms, cellars, trunks, and bookshelves; and that perhaps the day would come when, for the bane and the enlightening of men, it would rouse up its rats again and send them forth to die in a happy city.