See a Crime and Videorecord It? Go to Prison

That’s what this proposed South Carolina bill (S.B. 878) (sponsored by Sen. Sheheen — who is running for governor — and now before the Senate Committee on the Judiciary) would provide:

(A) It is [a felony punishable by up to five years in prison] for a person to produce or create, or conspire to produce or create, a video or audio recording, digital electronic file, or other visual depiction or representation of a violent crime, as defined in Section 16-1-60, during its commission … [except for]

(1) viewing, photographing, videotaping, or filming by personnel of the Department of Corrections or of a county, municipal, or local jail or detention center or correctional facility for security purposes or during investigation of alleged misconduct by a person in the custody of the Department of Corrections or a county, municipal, or local jail or detention center or correctional facility;

(2) security surveillance in bona fide business establishments;

(3) accidental or incidental recordings;

(4) any official law enforcement activities;

(5) private detectives and investigators conducting surveillance in the ordinary course of business; or

(6) any bona fide news gathering activities.

So you see a robbery occurring, or the police illegally beating a citizen, and you videorecord it — you’ve now committed a felony, unless you can persuade a court it’s a “bona fide news gathering activit[y].” (The recording isn’t “accidental or incidental,” since you’re making it deliberately.) Or say your friend is being attacked, and you record the video to give to the police or to use in a civil suit; perhaps you even expected an attack, for instance if you’re going to a potentially violent demonstration or going past a place where thugs have routinely attacked people of some race, religion, or sexual orientation. That too is a felony.

And while one could interpret any citizen action aimed at gathering information as “bona fide news gathering activit[y],” that’s far from clear. It’s an argument I’d make as your defense lawyer, but it’s not an argument you can feel confident about if you’re deciding whether to make the recording. If the law is enacted, any suitably cautious South Carolinian would be well-advised just not to record any crime he sees, if he wants to avoid the risk of prison time.

The law is supposedly aimed at people who “go out there with the people committing the violent crime for the purpose of videotaping it and then putting it up on the Internet.” But it’s not written that way — there’s no requirement, for instance, that the person doing the videorecording be complicit with the criminal. (Indeed, going along with someone for the jointly understood purposes of videorecording and publishing his violent crime would already likely be aiding and abetting, because it would encourage the commission of the act. But in any event, such an action could be criminalized without generally criminalizing recording by people who are not complicit with the violent criminal.)

And while the article I just linked to says that “innocent citizens who witness a crime would be allowed to shoot video of it with their cell phones and give it to police or the news media,” there is no such exception in the proposed statute. If your plan is to video record to give the video to the police (or to some watchdog agency), I see no exception covering the behavior. And even if you give the video the news media, that might not be seen as “bona fide news gathering activit[y]” on your part, especially if your plan is at first just to record the event for the sake of your own purposes (or to give it to the police) and then you decide to pass it along to the media later.

So the statute, I think, would be an unconstitutional restriction on the ability to gather information (notwithstanding the vague “bona fide news gathering activities” exception). And in any event, it strikes me as a vastly overbroad reaction to conduct that is likely already criminal, or could be made criminal through a much narrower law.

Thanks to Jim Dedman (Abnormal Use) for the pointer.

UPDATE: Thanks to commenter Person, who noted that the sponsor is running for governor; I modified the post accordingly.