A bid by Sonoma County prosecutors to remove two YouTube videos documenting an alleged incident of police brutality is likely to have two outcomes — neither of them favorable to law enforcement.
First, it will call greater attention to the videos themselves, which is exactly what prosecutors say they don't want.
Second, it almost certainly will go nowhere. At least we hope so, because the alternative — giving government officials license to censor open documentation of a police action in a public setting — is unthinkable and would have a chilling effect on the public's ability to analyze and discuss the conduct of government officials, including police.
Such freedoms may be inconvenient at times for public officials and cumbersome for police, but they are the cornerstone of the First Amendment and must be protected from this kind of mischief.
In this case, prosecutors are trying to remove two videos, including one that links to a Press Democrat story, that show a confrontation between Santa Rosa police and a 49-year-old man who was charged with obstruction in September. During the encounter, the videos show one of the officers striking the man, Thomas Flournoy, repeatedly while two others officers are holding him down.<NO1> He reportedly suffered three broken ribs in the incident.
<NO> In his motion seeking a court order,<NO1><NO> Deputy District Attorney Andrew Lukas contends the videos could sway potential jurors in an expected misdemeanor trial.
One video is certainly intended to provoke a response. It's highly edited and dubbed with music of Woody Guthrie singing "This Land is Your Land" as the officer strikes Flournoy. At the end, it appeals to witnesses to contact an attorney for Flournoy. The other is more than nine minutes long and appears to be an unedited account of what transpired, as captured by a cellphone owned by one of Flournoy's companions.
<NO1><NO>Prosecutors contend the plaintiff's attorneys were involved in the distribution of the videos and that constitutes inappropriate pretrial conduct. But the evidence for such an argument, particularly as related to the longer video, is thin. Regardless, attorneys have a right to seek witnesses in defending their clients, and there's no reason to believe that YouTube is off limits in this search.
We respect the desire of prosecutors to limit pretrial publicity. But in this case, the damage that would be done by pulling these videos would be far greater than any good that might come from it. For good reason, courts have not looked favorably on attempts to limit this kind of public documentation of police conduct. Just this August, the U.S. First District Court of Appeals ruled in a high-profile case that police acted unlawfully in preventing a man from videotaping officers making an arrest on Boston Common. In its unanimous decision, the court said, "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
Reasonable people can disagree about the facts in this Santa Rosa case and what these videos show. But there's no hiding the fact that this motion comes across as an attempt to pull from public view a video that casts local police in a poor light.
In other words, this is a case only YouTube will win.