Lawrence Person's BattleSwarm Blog

Several commentators on yesterday’s post and video about a man being assaulted by liberal thugs for the crime of videotaping Democratic gubernatorial candidate John Kitzhaber at an event open to the public at Emmanuel Temple Church in Portland, Oregon, opined that no crime had been committed, since the videographer was on private property, and thus should have complied with a request demand to stop filming.

I’m not a lawyer, so I am not clear on the issue, namely: Does a political event open to the public, but set in a private space, count, for the sake of the law, as occurring in a public space or a private space? I can see how both might apply, depending on the circumstances and on individual state law.

To clarify the issue, I asked two of the leading legal lights of the blogosphere, Eugene Volokh of the Volokh Conspiracy and Instapundit Glenn Reynolds for their opinion on the issue.

Volokh’s response:

Neither the press nor other speakers have a right to stay in a church when the owners or the agents tell them to leave. The same is true for other private property, except in a few states as to large shopping malls. Moreover, the owner of property has the right to use reasonable, nondeadly force to eject trespassers. But if the event is billed as open to the public, then trespassers wouldn’t be trespassers until they’re told to leave and refuse. I haven’t seen the video, so I can’t speak to the facts in this case.

Reynolds’ response:

I agree with Eugene. As a practical matter, if I were the filmer in question I would probably sue for assault, etc. on general principles. Fear of lawsuits causes people to do all sorts of things; it might as well make them more reluctant to hassle photographers. But that’s just me following the “punch back twice has hard” philosophy propounded by a great man.

Thanks for both gentlemen for clarifying some of the legal issues involved.

A few points:

1. It is unclear from the video whether the people asking ordering the videographer to stop taping are representatives of the church or not. Indeed, the only name badge visible is not “Emmanuel Temple Church” but “African-American Alliance.”
2. A lot of people have stated that videotaping is not free speech. true, but irrelevant, since the First Amendment right in question here is not freedom of speech, but freedom of the press.
3. If they had wanted to eject the videographer, they could have attempted to do that. They did not. Instead they punched him.
4. Why was John Kitzhaber (or his lackeys) so adamant that no one was allowed to film him at a public event that they were willing to assault people to prevent it? Given all the previous incidents, you have to wonder if someone has sent out a memo from the Democratic National Committee telling candidates to prevent themselves from being filmed at all costs.
5. If so, a fat lot of good that will due them in an age of small, cheap, ubiquitous cameras.