Documentary Filmmaker Arrested At Congressional Hearing For Filming With A Different Opinion

from the first-amendment-anyone? dept

Thu, Feb 2nd 2012 11:47am — Mike Masnick

In a rather troubling move, it appears that the leadership of the House Subcommittee on Energy and Environment had a documentary filmmaker arrested on Congressional property for daring to try to film a hearing that was taking place on the subject of "fracking" -- an issue for which this filmmaker, Josh Fox, is well known for covering in his documentary Gasland. As far as I can tell, it appears the reason for his arrest was that he was "filmmaking with a different opinion than subcommittee Chair Andy Harris." As the article linked above (by Zach Carter at HuffPo) details, it isn't just common, but pretty much standard, that journalists are allowed to film any open Congressional hearings.

While it's true that there are rules in which those who wish to film hearings are supposed to get permission, no one seems to be able to remember such rules ever being enforced:

"I was chair of the Subcommittee for four years, and we frequently had people show up the day of a hearing to film," Rep. Brad Miller (D-N.C.) told HuffPost. "We asked for their name, but they were told if they would not disrupt the hearing, they were free to record. A couple of times staff said, 'You're getting in the way, don't stand there,' but other than that, I do not ever recall anything like this. We certainly never turned anyone away for not providing 24 hours' notice."

[....]

Rep. Jerry Nadler (D-N.Y.) told HuffPost, “I have served in the House of Representatives since 1992, and I had the privilege of chairing the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. In all that time, I cannot recall a chair of any committee or subcommittee having ever ordered the removal of a person who was filming a committee proceeding and not being disruptive, whether or not that person was accredited. It is a matter of routine that all sorts of people photograph and record our proceedings. Most of them are not accredited. I cannot recall anyone questioning their right to be there."

On top of that, even if you want to stick to the letter of the rules, and say that since he didn't have approval he shouldn't have been allowed, that still doesn't excuse the arrest. They could have simply confiscated the camera, or even simply checked to see if he could obtain a temporary permit:

Temporary passes are easy to obtain, and if Republicans had objected on procedural grounds, they could have simply sent the crew to the front desk, rather than ordering police to arrest journalists.

And, of course, now this is raising some serious First Amendment issues. Considering that pretty much everyone else has been allowed to film, and the only times that people are rejected are if there are too many cameras (not so in this case), it appears that the only reason that Fox was arrested was because his opinion was different from that of the subcommittee chair. And that's where the First Amendment issue comes in. If the reason for his arrest was based on his viewpoint, rather than his actions, then that's an almost certain First Amendment issue -- and since the only thing different in Fox's situation compared to most others' situations is his opinion... then this action likely trips that First Amendment wire.

But here's the really crazy thing: I can't, for the life of me, figure out how this move made any sense to Rep. Harris. If he had allowed the filming to go on, it would have been a non-story, and most people wouldn't have heard about this hearing or paid any attention to the issue at all. But by having the guy arrested, he's now called much more attention to the issue, guaranteeing that it becomes a news story that lives on for a while... and it does absolutely nothing to stop what happened in the hearing from appearing in a later documentary by Fox. That's because C-SPAN still filmed the whole thing... So all Rep. Harris did was give a lot more attention to a guy whose viewpoints he opposed.

For what it's worth, we've chided Fox in the past as well, for abusing the DMCA to take down videos he had no copyright over, to try to hide the speech of critics. He's certainly no free speech hero himself. But that hardly means that we should encourage his own free speech rights to be taken away. In the meantime, since much of the coverage here makes this into a "Republicans vs. Democrats" issue, one also has to wonder about Rep. Darrell Issa's view on the whole thing. While it was his party that had Fox arrested, he's been a champion of much more openness and transparency with recordings of Congressional hearings.

It seems that whether you agree with Fox or not, it's simply ridiculous (and potentially against the law) to have had him arrested merely for seeking to film the hearing in question.

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Filed Under: andy harris, congressional hearing, fracking, free speech, gasland, josh fox

43 Comments

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Skeptical Cynic (profile), 2 Feb 2012 @ 11:08am

Freedom
is never a defense it should always be the default. Anyone standing against it should be called out.
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Anonymous Coward, 2 Feb 2012 @ 12:04pm

Streisand Effect
Rep. Harris is soon to learn of it.
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Robert (profile), 2 Feb 2012 @ 12:05pm

Stay Classy
Its always good to see our highest elected representatives upholding one of the most basic elements of the Constitution.
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Anonymous Coward, 2 Feb 2012 @ 12:06pm

Didn't you see how dangerous his opinion was though Mike?!
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John Doe, 2 Feb 2012 @ 12:09pm

What is the penalty for violating the Constitution?
As I have asked here before, what is the penalty for violating the Constitution? I don't believe there is a penalty as it is violated all day every day. Why is it congress can pass laws to turn citizens into criminals and fine you $80,000 per shared song, throw you in jail for years for file sharing, but nothing can be done to them for violating the very foundation of our country? Seems like that should be considered treason.
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A Guy (profile), 2 Feb 2012 @ 12:14pm

I know that the film maker has a slam dunk case against the government for violating his rights and selectively enforcing the law, but can he sue the congressman personally also?
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Anonymous Coward, 2 Feb 2012 @ 12:28pm

So the lesson of the day, those in charge are entitled to strong arm tactics, when faced with opposition.

Wheww, its a good thing this is an isolated incident and totallly not widespread, and only used to protect issues that benefit the people and not some companies profit margin.......again!

News flash
government officials spit on the bill of rights on a daily basis

News flash
the bill of rights does'nt exist in governmant land

Newsflash
no matter how big or small, corruption is corruption
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Jim McGinn, 2 Feb 2012 @ 12:32pm

Streisand effect, welcome to clueless.
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Anonymous Coward, 2 Feb 2012 @ 12:34pm

2012 Feb

"Filmaker arrested for having an undesirable opinion"

Government stance on the internet

"it is not our intention to censor the internet"

Rrrrrright, way to prove your case
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Loki, 2 Feb 2012 @ 12:37pm

Re:
Too bad those in charge never seem to learn from those before them that strong arm tactics when faced with opposition is eventually met with more opposition.
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Anonymous Coward, 2 Feb 2012 @ 12:42pm

Re: Re:
i guess its about time for them to be reminded.
Tusk, Tusk, how easy they forget
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Chosen Reject (profile), 2 Feb 2012 @ 12:44pm

Re:
No it's true. They really don't have any desire to censor the Internet. They really want to censor things before it gets to the Internet.
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Crashoverride (profile), 2 Feb 2012 @ 12:48pm

The story is a bit worse for two reasons. The Democrats on the subcommittee forced a vote right then and there that any rules being enforced to remove him be waived. However they where voted down by the higher number of Republicans on that committee. (not taking party sides I'm just saying) Also he had indeed properly applied for and did the proper paperwork to be allowed. However the chairs staff kept going back and forth saying he was approved then maybe not etc...

In a interview today Fox who was removed claims the results of the scientific studies are being skewed via a manipulation and appointment of favorable scientists by this same committee.
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Gwiz (profile), 2 Feb 2012 @ 12:54pm

Congressional Oath of Office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

A man�s word is his bond, well, except when confronting a filmmaker with a different opinion that is.
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Anonymous Coward, 2 Feb 2012 @ 1:00pm

Re: Re:
????
censor us............ individually!

Genius
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MonkeyFracasJr (profile), 2 Feb 2012 @ 1:02pm

The embedded video ...
That is the most annoying embedded clip ever.

I am not referring to the content. The damn thing AUTO-PLAYS and you can click pause all you want and NOTHING happens. Finally when you click in the video window itself you are taken away to a new website!

for whoever is wondering I am using Ubuntu 11.04 and Firefox, and other embedded videos do not auto-play.

FOUL!
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Anonymous Coward, 2 Feb 2012 @ 1:07pm

Re:
"Congressional Oath of Office:

I do solemnly swear (or affirm) that I will support and defend the *Censored of the United States against all enemies, foreign and *Censored; that I will bear *Censored faith and allegiance to the same; that I take this *Censored freely, without any mental reservation or purpose of *Censored; and that I will well and *Censored discharge the duties of the office on which I am about to enter. *Censored
[ link to this | view in thread ]
MonkeyFracasJr (profile), 2 Feb 2012 @ 1:09pm

Re: The embedded video ...
I cannot mute the clip either.
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anonymous disenfranchised Dutch coward, 2 Feb 2012 @ 1:10pm

problem
and i thought europe was loosing it!
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Gwiz (profile), 2 Feb 2012 @ 1:11pm

Re: Re: The embedded video ...
NoScript FTW!
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Forrest, 2 Feb 2012 @ 1:13pm

Re: The embedded video ...
How can you live without NoScript? I don't even see the still image of the video unless I click on it. http://noscript.net/
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Anonymous Coward, 2 Feb 2012 @ 1:27pm

Another prime example of corrupted system. United-statesians are sleeping... Wake up and do something. You should be ashamed of yourselves. All of you.
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Anonymous Coward, 2 Feb 2012 @ 1:28pm

Response to: Gwiz on Feb 2nd, 2012 @ 12:54pm
Haven't you ever heard of junk bonds?

The chair is merely giving his masters their money's worth.
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Rapnel (profile), 2 Feb 2012 @ 1:39pm

Re: What is the penalty for violating the Constitution?
Yay-ess, they are in Contempt of Constitution as they've breached their oaths.

Penalty should be the immediate removal from office until proven innocent. Let it roll like everything else.
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Rapnel (profile), 2 Feb 2012 @ 1:43pm

Re: Re: The embedded video ...
adblock element (ff)
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Zos (profile), 2 Feb 2012 @ 1:46pm

Any chance of finding the C-SPAN footage? I normally assume any government interface will be impossible to find anything on, but i thought i'd ask.
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Not an Electronic Rodent (profile), 2 Feb 2012 @ 2:13pm

Got there at last....
It's so wonderful to see you Americans finally coming round a a "proper" British interpretation of Free Speech. I.e. "You can say anything you like as long as it's considered 'Acceptable'". Bravo.. well done! [polite clap]
/sarc

Fast forward 10 years I can see a game show question:
Host: "What was considered the foremost document of civil rights in the last century"
Contestant: "Ummmmm.. that would be the 'Constipation' Bob?"
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gorehound (profile), 2 Feb 2012 @ 2:24pm

Wake me up when the Revolution Starts !
Nothing short of that will change the way our leadership is.
You can not even Vote for someone you really believe in any longer because there is no one to believe in.
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non-anonymous coward (profile), 2 Feb 2012 @ 2:50pm

Facebook is ...
...harrisforcongress

if you want to show your support.
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Prashanth (profile), 2 Feb 2012 @ 2:52pm

People wonder
And people wonder why our ranking for freedom in journalism is so low this year...
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Anonymous Coward, 2 Feb 2012 @ 2:53pm

Fox is a douche, a poor propagandist and gasland has been discredited as crap.
It sucks what has happened to this asshat as it will give him more greed in his circles.
You know the Algore types who think I should live in the dark and ride a bike as they jet around the globe.
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LazDude2012 (profile), 2 Feb 2012 @ 3:12pm

Re: Re: The embedded video ...
Me, I just use AdBlock Plus with both chrome and firefox.
[ link to this | view in thread ]
Anonymous Coward, 2 Feb 2012 @ 3:41pm

Papers please....vere are your PAPERS!
Ve hafe vays of delink vith people like joo...
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Anonymous Coward, 2 Feb 2012 @ 5:16pm

Re: What is the penalty for violating the Constitution?
We also have a 4th Amendment and 5th Amendment which says that the, among other things, that the government can't take away the land of the people, except in the case of greater good, and when no other option exists.

Yet, there is a utility easement in most backyards in use by companies. Comcast (not regulated, not a utility) lays their pipes in your backyard - and when you call them on it - it doesn't exactly go your way.

You are correct. There should be severe penalties for violating the constitution.
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Anonymous Coward, 2 Feb 2012 @ 5:33pm

Re:
Nice, ad homs all the way.

Stay Classy, Ohio.
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Anonymous Coward, 2 Feb 2012 @ 5:49pm

Re: The embedded video ...
If you disable white listed Techdirt to help them get some ad revenue, block it again and instead Flattr'ing it instead

If you don't use an ad blocker you may want to consider doing so.
[ link to this | view in thread ]
Anonymous Coward, 2 Feb 2012 @ 5:51pm

Now that is censorship plain an simple.
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Anonymous Coward, 2 Feb 2012 @ 8:00pm

Re: What is the penalty for violating the Constitution?
The penalty is to get voted out by the enraged electorate. There is no other penalty, because Congress is not going to pass laws to penalise itself. Come on, you US voters, stop trying to talk your Congress critters into being reasonable. That is not going to work. Remember their actions. Hold their bad behaviour against them. Do not forgive. There are plenty of decent people eager to be Congress critters. Make sure the bad ones do not get another term. Do your duty.
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TtfnJohn (profile), 2 Feb 2012 @ 8:23pm

well if Harris has wanted to avoid publicity about what would have been a dull, boring committee meeting he just got the opposite.

And if he wanted to avoid giving opponents of fracking another set of reasons to continuing to oppose it he just found it.

Hell, even the security guy looked embarassed.

Rep Harris meet Streisand effect. Streisand effect meet Rep Harris. I see a long and intimate relationship ahead for you both. :)
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dcee (profile), 3 Feb 2012 @ 12:24am

Re:
"propagandist and gasland has been discredited as crap."

And............ citation needed!
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Vincent Clement (profile), 3 Feb 2012 @ 7:51am

This is the standard MO of the right-wing. If someone's opinion differs from your opinion, label them as un-American and a threat to society and have them arrested.

It's just like the guy who got arrested for wearing an Occupy jacket in the history exhibit at the United States Supreme Court: http://bit.ly/x3j0Le
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Steve Landess (profile), 5 Feb 2012 @ 10:09am

Jack-booted thugs
I called the DC office of Representative Harris on Friday to express my dismay at his treatment of Josh Fox, only to have his staffer argue with me about how the filmmaker 'broke the rules'...

Despite the fact that I agree politically with Andy Harris on many issues, I told his staffer to convey the message that, in light of the fact that those 'rules' have rarely been enforced, I hope the Congressman's constituents throw him out on his ear in the next election.
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Anonymous Coward, 10 Feb 2012 @ 10:47pm

Re: Re: What is the penalty for violating the Constitution?
you may want to educate yourself on the 5th amendment, it doesn't say that AT ALL, they pay you fair value for the land, fair value, doesn't mean the pay you want for it, they can then take the land

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
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