On May 8 the South Carolina Supreme Court issued an opinion reversing the conviction of a man arrested merely for annoying the police by asking questions as they issued a traffic ticket, giving the public and the press some protection for scrutinizing police actions. But two weeks earlier, public scrutiny of the police suffered a setback when the Myrtle Beach Police Department began scrambling its radio communications.
Public scrutiny of the police has of course been an important issue for the past several years, with the members of the public increasingly using cell phones to record police activity and hold them accountable. While some officers do not like being recorded—and some have threatened to and have actually arrested people and journalists for doing so—courts that have addressed the issue have consistently held that members of the public generally have the First Amendment right to record police actions in public places, as long as they are not interfering with the police activity.
The South Carolina case involved the arrest of Thomas Jones after he questioned why Greenville County sheriff’s deputies had pulled over a friend who was coming to visit him. According to police body camera video reviewed by the court, as Jones continued to observe the officers, using a flashlight, one of the officers asked him, “Alright man, do you need to be here?” Jones responded, “Yeah, this is my house,” to which the officer responded, “You can go back over there (to the house), or you can be arrested for interfering. Step back.” After Jones did not move, the deputies tackled Jones, tased him, handcuffed him, and then arrested him. Jones lost consciousness during the altercation.
While the South Carolina decision does not address recording the police, Jones reportedly used his cellphone to record the incident.
Jones was accused of violating a Greenville County ordinance that makes it a crime to “resist, hinder, impede or interfere with any law enforcement officer in the lawful discharge of his or her duty … .” Even though the ordinance has a specific provision exempting “constitutionally protected conduct such as the peaceful questioning or protesting of government action,” Jones was convicted and sentenced to thirty days in jail and a $1,000 fine, suspended upon ten days in jail over weekends and a $500 fine.
The state conceded to the state supreme court that the ordinance had been improperly used to arrest Jones. The court agreed, holding in a unanimous decision written by Justice John C. Few that it was “clear from both the body camera footage and the record before us, Jones was doing nothing more than observing and asking questions of the officers.” The court added that “Both of these actions are constitutionally protected conduct, and as such, cannot support a conviction under this ordinance.”
But the court refused to go further by declaring the ordinance itself unconstitutional, as Jones had urged. “The facts in this case are appalling,” and “indicate(s) (that) the ordinance affords law enforcement officers discretion which can be grossly abused …,” Justice Few wrote. “However, we decline the temptation to go further than necessary solely because of the egregious behavior of the deputies in this case.”
In addition to appealing his criminal conviction, Jones also filed a federal civil rights lawsuit against the police, which was apparently settled in January 2022.
Meanwhile, on April 15 the Myrtle Beach Police Department, joining other police departments nationwide, began scrambling its radio communications. The department claimed that the scrambling is required by FBI guidelines, but that is not clear. Some state legislators outside South Carolina have proposed protecting media access to encrypted police communications, but none of their proposals have become law.
Media organizations have long relied on police scanners to monitor law enforcement activity and learn of braking news events. But as equipment to intercept police radio transmissions have become more available and livestreams of police communications have moved online, law enforcement has grown increasingly concerned that bad actors can learn police techniques and monitor police activity and responses in real time, increasing danger to officers.
These are legitimate concerns. But law enforcement agencies must not forget that they act for and are accountable to the public, and that allowing press organizations to access decrypted communications is an important aspect of accessibility and accountability.
And so, according to the South Carolina Supreme Court’s ruling, are citizens asking the police questions, and monitoring their activities and responses.
Eric P. Robinson focuses on media and internet law as associate professor at theUSC School of Journalism and Mass Communication, an affiliate of USC’s Joseph F. Rice School of Law and in an “of counsel” position atFenno Lawin Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.
