“Swan Song” is the episode of Castle that aired on Nov. 12, 2012. It features two groups to which the First Amendment potentially applies: a religious cult, and a film-maker. The episode touches on or directly addresses several First Amendment issues, though it doesn’t actually name-check any of them. Spoilers inside.
I. The Setup
Okay, some basic facts here. The murder victim is a member of a band. The band is apparently about to make it big, and there’s a documentary film-maker following them around when the murder happens. He wants to keep shooting, thinking that the death will punch up the final product, but Beckett et al don’t initially want to permit this. This raises the question of whether there’s any protected First Amendment right to have a film crew both at an active crime scene and then following the police around as they investigate.
The second issue has to do with the fact that the murder victim was a former member of a religious cult in upstate New York. The cult leader becomes a person of interest, as there’s reason to believe he might have either wanted the victim dead, or had been blackmailing him. Apparently, the DEA has been interested in the cult for some time, suspecting that it’s actually cover for a massive marijuana grow op, but they’ve been unable to get anywhere due to the group’s invocation of its First Amendment rights.
We’re going to take a look at both of those things.
II. The First Amendment and Police Investigations
Citizens filming police officers during law-enforcement activities is an increasingly tense area of civic life. Many people, particularly activists of various stripes, believe that filming the police during their interactions with the public is an essential tool for curbing police abuses and brutality. The police, on the other hand, generally don’t want to be filmed. So it’s understandable that when Beckett, Esposito, and Ryan arrive at the crime scene, the first thing they do is order the film-maker to stop the cameras. They’re ultimately forced to let the filming continue when the producer pulls a few strings and convinces the mayor that it would be good for publicity. But the question is whether the NYPD would have been able to order the filming to stop if it had wanted to.
It turns out that the answer isn’t clear, at least not in New York. “[N]o Second Circuit case has directly addressed the constitutionality of the recording of officers engaged in official conduct.” Mesa v. City of New York, 2013 WL 31002 at 25 (S.D.N.Y. Jan. 3, 2013). Elsewhere in the country the law is in conflict. The First, Seventh, Eleventh, and Ninth Circuits have held that the First Amendment protects recording the police, at least so long as the person doing the recording has a legal right to be where they are and they are not interfering with police business, limited only to reasonable “time, place, and manner” restrictions. See Glik v. Cunniffe, 655 F.3d 78 (1st Cir.2011); Am. Civ. Liberties Union v. Alvarez, 679 F.3d 583 (7th Cir.2012); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir.2000); Fordyce v. Seattle, 55 F.3d 436 (9th Cir.1995).
But the Third and Fourth Circuits have disagreed. See Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010); Szymecki, v. Houck, 353 Fed. App’x. 852, 853 (4th Cir.2009). Recently the Supreme Court had a chance to clear up the issue when the defendants in the Alvarez case appealed, but it denied certiorari, letting the lower court ruling stand.
In the Mesa case in New York, the court indicated that it was “inclined to agree with the First, Seventh, Eleventh, and Ninth Circuits that the photography and recording of police officers engaged in their official duties “fits comfortably” within First Amendment principles”, but the case ultimately turned on other issues. For its part, the Department of Justice’s official position is basically that “A person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law.”
That said, even if the film crew had a right to film at the crime scene, they very likely had no right to film at the precinct. This is not a First Amendment issue but rather a trespass issue, since members of the public have no particular right to wander around police departments.
III. The First Amendment and Marijuana
Then there’s the issue of whether this religious cult in upstate New York, which is allegedly growing upwards of twenty acres of pot, could actually impede a DEA investigation on First Amendment grounds. The answer here is pretty clearly “No.” There is not a single case which supports a First Amendment right to possess, produce, consume, or distribute marijuana. See., e.g., United States v. Rush, 738 F.2d 497 (1st Cir. 1984). That was true in 1984, and Rush is still good law, cited as recently as 2008 by the 8th Circuit. Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008). So the idea that asserting some kind of First Amendment issue is going to cause any law enforcement agency to even slow down as they investigate a potential grow op of this magnitude fails the laugh test. It’s completely unbelievable.
As an aside, the idea that the cult leader could shut down Beckett by threatening a First Amendment suit if she continued to investigate him is likewise suspect. While courts tend to be pretty willing to put a stop to government activity that burdens religious expression, they tend to be pretty unwilling to find that government activity actually does burden religious expression. If the government can describe a neutral “time, place, or manner” reason for its activities, such activities tend to do pretty well in the courts. Here, it’s going to be even easier for the NYPD, because the cult and its activities are objectively of interest in a criminal investigation, given the murder victim’s ties to the cult, recent meeting with the cult leader, and recent visit to the cult’s property. The fact that Beckett didn’t have enough evidence to constitute probable cause to arrest the cult leader at the time the threat was made does not mean that she has to stop looking for such evidence, and any such investigation is almost certain to be immune from any First Amendment challenge.
So the episode is sort of one for two this time. It portrays the filming issue fairly well, capturing the tension between police officers and citizens on the issue. And it comes up with a novel solution to side-stepping the constitutional issues: simply give the film-makers permission. The fact that the NYPD could have restricted some of those activites doesn’t mean that it must.
But the religious freedom issues are pretty poorly done. The First Amendment does not protect any activity having to do with marijuana (except talking/writing about it, non-conspiratorially), and attempting to use the First Amendment for a twenty acre marijuana farm is never going to work. Nor should Beckett be realistically dissuaded from pursuing her investigation on threats of First Amendment lawsuits. Police officers can follow evidence wherever it goes without fear of that.