A French court last week ordered internet service providers in the country to block all access to a “Copwatch” site after vigorous complaints by the government and police organizations against the site and its users. An unusually harsh imposition of internet censorship even by the more restrictive standards of France, the move highlights the real-world effect that differing free speech norms can have on broader questions of criminal law and society’s relationship with its law enforcement agencies.
The French organization, Copwatch Nord Paris I.D.F., represents a relatively recent international outgrowth of a grassroots movement that began in the United States more than two decades ago. The first group was founded in Berkeley, California, in 1990, and shares with other loosely affiliated groups across the country the broad goal of curbing police excess by recording and publicizing instances of brutality or constitutional violations. Portland Copwatch’s activism after the police shooting of Kendra James in 2003 helped lead to the identification of the officer involved—and brought with it accusations that the organization had recklessly exposed the officer to danger of reprisals. More recently, a Copwatch group in Phoenix made an effort to discover evidence of racially discriminatory traffic stops in the wake of Arizona’s S.B. 1070 immigration bill, provoking accusations by Maricopa County’s Sheriff Joe Arpaio that Copwatch was engaged in manipulative selective editing. There, as in several cases throughout the country, copwatch activism has helped produce at least one concrete result—the spread of on-board cameras with which police produce their own video records, both to increase transparency and to provide ammunition to rebut outside accusations of misconduct.
In the United States, a consensus has emerged that observers are within their rights to make video recordings of the police as they make arrests and otherwise go about their business. As the recent case of Glik v. Cunniffe demonstrates, individuals’ “clearly established” First Amendment rights outweigh all but the most pressing government interests—and the police interest in avoiding public scrutiny is not only not pressing, but hardly legitimate at all. Though some controversy remains in U.S. jurisdictions over non-consensual audio recordings, the rights of Copwatch organizations to record and publicize videos of police misconduct have been settled.
The French discussion, of course, takes place in the absence of a First Amendment or any similar conception of speech as a central, preeminent right. Copwatch Nord Paris IDF engages in many of the same activities as its sister American organizations, with the stated goal of “monitoring those who oppress us.” In addition to posting videos of police on duty, however, the French site also includes identifying information and pictures from Facebook and other publicly available social networking sites—including photos of police drinking and otherwise misbehaving when off-duty. Claude Gueant, the French Interior Minister, lodged an impassioned complaint against the site, alleging in particular that the collection of identifying information of officers into a comprehensive database “harms the personnel of the interior ministry and jeopardizes their and their families’ safety.” At least one officer testified that he had received a threatening mail message because of the site, but evidence of actual harm to Parisian police was lacking. Nonetheless, the French court agreed with the government and police union, and it ordered service providers to block the Copwatch site entirely because they asserted that selective blocking would be too difficult.
At first glance, the rationale for a decision so overtly favoring police privacy interests over transparency and citizens’ speech rights seems deficient—and this has certainly been the reaction of French free speech advocates. The spokesman of a French internet-rights organization described the ruling as evidence of “an obvious will by the French government to control and censor citizens’ new online public sphere.” In terms of its practical effects, too, the ruling seems characteristic of a troubling trend towards uninhibited police authority. A 2009 Amnesty report noted that “Allegations of beatings, racial abuse, excessive force and even unlawful killings by French police are rarely investigated effectively and those responsible are seldom brought to justice.” In 2010, a French teenager was sentenced to a three-month prison term for the offense of “public outrage” for insulting the national gendarmerie on his Facebook page after he was pulled over in a traffic stop.
Seen primarily through the familiar American lens as a question of police overreach, a decision blocking a “Copwatch” effort seems merely a further step towards law enforcement impunity. The decision becomes somewhat more comprehensible, however, when viewed in light of the characteristically continental European emphasis on privacy and “dignity” rights. The differing treatment of citizens’ rights vis a vis the police mirrors the transatlantic distinction between liberty and dignity as ordering principles. Whereas American “liberty” embodies a hostility towards the organs of state power—and American rights are conceptualized primarily as safeguards against central government abuse—the primary menace to a European citizens’ dignity interest is not always the government, but the intrusiveness of “society.” As Yale Professor James Whitman noted, “The core continental privacy rights are rights to one’s image, name, and reputation….They are all rights to control your public image—rights to guarantee that people see you the way you want to be seen.” It is not hard to see that behind the French police union’s rage over the supposed security threats posed by copwatch lies anxiety about the indignity and shame of such widespread exposure of misconduct.
The centrality of dignity to the European conception of individual rights has produced a number of distinctions with American traditions, many of which have their admirers among critics of the American tendencies towards First Amendment “absolutism.” Among these are the prevalence of civility norms, restrictions on hate speech, and significantly stronger protections against libel and defamation. Strong arguments can be made that the marginal gain in liberty of expression created by allowing free rein to Holocaust deniers or scandalmongers is more than offset by the corresponding abasement of societal discourse brought about by such a wide-open environment. The Copwatch decision, though, is a vivid reminder that a society’s concern for dignity rights, especially the dignity rights of authority figures, can have liberty consequences that are far less trivial.
Matt, great post and a really interesting look at the difference in free speech protections among democracies. Your last paragraph suggests that some conception of dignity, defined above as the right to one’s image and reputation, might be a valuable addition to the American conception of free speech. I don’t see the connection between dignity, as it is generally used, and dignity as you define it here. The dignity interest that allows European democracies to ban hate speech, which I would welcome seeing categorized as outside the coverage of the First Amendment, would also encourage programs like Copwatch because they help protect the human dignity of people abused by police. Though you’re right that needing protection from the state is different from needing protection from those that would privately dehumanize others, I think the dignity interest protected is the same.
Is it possible that instead of the dignity of individual police officers, what European democracies are really more willing to protect is the dignity of the government as a whole? Americans have a more natural distrust of government, on both ends of the political spectrum though in different forms, while Europeans generally want to view their government as effective and benevolent (I’m questioning here, more than asserting.). To the extent to which Copwatch exposes police misconduct, it undermines trust in the police, and when it exposes misconduct that is not investigated or prosecuted, it undermines the image of government as a whole. In order for government and the human actors within it to be seen as dignified and working on behalf of the people, these types of failures need to stay out of sight. I don’t think it would be impossible for the American conception of free speech under the First Amendment to import stronger protections for the dignity of individuals without importing dignity interests for the state, especially when the state is the one trampling on the dignity of its citizens.
I definitely agree that its important to separate out the European “dignity” norm from the French historical tendency to distrust government authority less than in the American tradition. I think that any legal-realist analysis of the recent French decision would have to acknowledge that a great amount of the impetus for the judges’ decision came from national political expectations that the authority of the police as an institution be respected. While I agree with you that it would be possible to import a stronger conception of “dignity” into the American conception of individual rights, there are certainly situations in which the traditional American view and the characteristically European one seem to produce conflict, and I think this situation is one. Even apart from their greater deference to government, European legal systems tend to give greater value to the “face” of individuals. Since, as a practical matter, the people who are concerned with public reputation are going to be disproportionately influential individuals — or, as here, public officials of some sort — the practical result of such values preferences can be restrictive of the rights of the public or press to criticize the rich, powerful, or famous. I’d love to see a greater place for human dignity in our discussions about rights, but it should be a conception of basic, universal human dignity rather than protection of public “face” or reputation. Greater restrictions on hate speech, for example, would fit within this, whereas stronger libel protections would not.