Police videos: Are the shooters witnesses or journalists?

Feidin Santana recorded the horrific video in South Carolina of a police officer shooting eight times at fleeing suspect Walter Scott and then leaving him to die. In a not too distant past, the media might have considered Santana a source, a witness to a newsworthy event who turned over crucial information.

But the fact that he recorded a video changes everything, not just about how justice might be served, but about the fundamental if overlooked question of whether Santana is serving in the role of journalist. And if so, what are the implications for the media, for the rights of all US citizens, and for press freedom?

Clearly, Santana is not the only one straddling this role. In Baltimore, activist Kevin Moore shot the video of Freddie Gray, limping and screaming in pain, as he was arrested by Baltimore police. The strangulation death of Eric Garner on Staten Island last summer was also captured on video. In some cases the videos have been provided to the media; in others they have been disseminated directly via YouTube.

Technology has transformed the act of witnessing from a highly personal and subjective experience to something that is increasingly collective and shared. This makes it difficult to distinguish from the act of journalism–both are documenting newsworthy events.

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Our society, indeed the world, is already engaged in a passionate debate about the role of “citizen journalists,” but the recent experiences of Santana and others who documented police violence compel us to broaden the considerations. Citizen journalists are generally understood to be non-professionals who deliberately engage in journalism. Here we are talking about something else: average people who with no premeditation or planning who record something of significance.

According to Santana’s own account, he was walking to work at a barbershop when he heard the electronic buzzing of a taser and saw Walter Scott struggling with a police officer. He began filming as Scott broke away and captured the fatal shots being fired.
Santana said he told an officer at the scene that he recorded a video and was told not to leave. Fearful, Santana ran off.

It’s probably not so surprising that Santana’s instinct was to flee, given law enforcement’s–and even lawmakers’–own instincts to suppress such filming. US Federal Marshals in California last month destroyed the cell phone of woman who was recording the arrest of a suspect. In Texas, the State Assembly briefly considered a bill backed by police associations to compel bystanders with video cameras to stand at least 25 feet away from any police operation. Free speech wasn’t the prevailing sentiment that these officials were eager to protect.

Generally, though not always, officials are more willing to bestow such rights to professional journalists. But if journalism can’t be defined how can it be protected? Whether the press clause of the US First Amendment confers any special rights on journalists as opposed to average citizens is an unresolved legal question. But the need for a working definition is critical. Look at the debate over shield laws that protect journalists from being forced to reveal information and sources. In fact, the challenge of determining who is and who is not a journalist was one reasons the proposed US Federal Shield Law is still hung up in Congress.

This issue is even more complex when viewed from a global perspective, where frontline news-gathering is being carried out not just by professionals journalists but by eye witnesses with cell phones. It’s not an anomaly. It’s commonplace, and it’s providing some of the most crucial and dramatic reporting.

In Syria, for example, professional journalists can’t operate in much of the country because of the extraordinary level of danger. This means that most of the frontline documentation is being done by citizens, activists, and other eyewitnesses. Many recent street protests, like Gezi Park in Istanbul or the clashes that preceded last summer’s World Cup in Brazil, were documented by the protesters themselves. When disasters strike, the images that reach the world tend to come from average people on the scene, with the devastating Nepal earthquake being the latest example.

This reality forces us to go back to the most basic understanding of what constitutes journalism. In its most stripped down, elemental form it consists of nothing more than gathering information and disseminating it to the public. This is why for the nearly four minutes that he was recording his video of Walter Scott’s death, Feidin Santana was acting as a journalist. And this is also why efforts to defend press freedom requires that journalists and media organizations–in the US and around the world–stand up for the rights of all people, not just for their own.

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Joel Simon is a CJR columnist and the executive director of the Committee to Protect Journalists. His second book, The New Censorship: Inside the Global Battle for Media Freedom, was published by Columbia University Press in November 2014.