Castle: “Swan Song”

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.

IV. Conclusion

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.

21 Responses to Castle: “Swan Song”

  1. Given that superhero posts are getting scarce here, I have a question: on Young Justice, the Reach (extraterrestrial bad guys, but who have an official presence on Earth) have produced a soft drink which has the effect of 1) drugging and the populace over a long period of time, and 2) helping the Reach detect meta-genes.

    Now, obviously, this is not really legal, but I’ve been wondering: Is this legal? I mean, obviously secretly giving people drugs isn’t legal, but would they really be able to just start up a company to make a drink which contains unknown chemicals without having to have their ingredients certified by some government agency? O

    • Don’t worry, after I wrap up my review of Little Brother I have a series of posts planned about a lawsuit brought against Firestorm back in the 1980s. The writer of the series later went on to write for Law & Order, so it should be good.

      With regard to your specific question:

      New food additives, including substances added intentionally to food and substances that may migrate to food because they contact food (e.g., food packaging) must be shown to be safe to FDA’s satisfaction before companies can market them.

      Companies that want to add new additives to food bear the responsibility of providing FDA with information demonstrating that the additives are safe. FDA experts review the results of appropriate tests done by companies to ensure that the additive is safe for its intended use.

      That’s from the FDA’s site. For all of the legal details, see 21 C.F.R. § 170.3 – 106.

      • OK… so they push a product through the approval process without the additive. Then, once it’s approved, they start adding the additive and shipping the product. Who is responsible for discovering this?

      • I don’t know to what extent the FDA or other government bodies inspect food manufacturers or conduct sampling of the finished product. I do know that the FDA sometimes conducts targeted sampling of packaged foods to test the accuracy of their nutrition labeling. From a 2008 GAO report: “From fiscal years 2000 through 2006, FDA collected targeted samples of 868 domestic products and 783 imported products for tests of compliance with nutrition labeling regulations.”

      • James Pollock

        But is it the FDA’s job to detect? Or the FBI’s?

      • Melanie Koleini

        It’s the FDA’s job to keep food safe. In practice, they may not detect a problem tell someone else (CDC, Public Health Dept, consumer watchdog group, est.) brings an issue to their attention. I’m sure the FBI would be interested if food was deliberately poisoned but food safety is not their job.

      • James Pollock

        If a product is adulterated, and that product is then distributed across state lines, you’d have a crime that fell under the FBI’s purview (recall the Tylenol poisonings of the 1980’s) but is it their job to detect that the crime has occurred, or merely to respond once it is clear that it has? I would suspect that either the FDA or the FBI would defer to the other if pressed (partly because each has many other pressing issues to handle, and an argument can be made that either one has jurisdiction, partly because neither agency really wants to be on the other’s turf.)

  2. Does the RFRA enter into the interpretation of the first amendment? I understand that it doesn’t apply to the states, but arn’t the drug laws involved federal?

    • The Religious Freedom Restoration Act was discussed in some of the cases mentioned above, and the courts have uniformly decided that, whatever its effect, it doesn’t extend to protecting the possession or distribution of marijuana.

      • Even if RFRA applied here, wouldn’t it still not protect a drug farm of that size? From what I understand, (as applied to drug laws) it allows for the limited use of peyote in religious rites, but not just general use by members of the various tribes that engage in peyote use. And forty acres seems like way more pot than could ever be used by that small group of people in any sort of rituals. So at that point, they’re just producing with intent to distribute, which is illegal in NYS regardless of the producers’ original religious motivation.

      • Ryan Davidson

        More to the point, the courts have held that while the RFRA may apply to peyote, it does not apply to marijuana.

  3. OK, so the DEA thinks there’s a massive pot farm on the property. They still have to produce enough evidence to show probable cause before they can go check. If the evidence is sparse, and the group makes a claim that the government is just hassling them because their religious beliefs are different or unusual, it might be a PR problem for the agency, even if they’re right.

    • There are (or were) a lot of semi-religious groups that used marijuana in this country over the past few decades. In general the state and federal authorities didn’t have much trouble with investigations and prosecution. If it were, say, a First Nation group (and possibly on their own sovereign territory) it could get complicated fast but what’s mentioned here doesn’t suggest that.

      • James Pollock

        I think you missed one of the conditions I offered: evidence is sparse. I don’t have strong memories of a TV episode from three months ago, but as I recall, the cult group wasn’t USING the marijuana, they were distributing it to make money. As such, there’s not even a trace of a first-amendment argument protecting them (directly). But if there’s a history of harassment by law enforcement because the LE elements don’t like cults in general or these cultists in particular, THEN all of a sudden a LE agency’ss entirely reasonable request for a warrant to look for a pot farm looks like just another part of a harassment campaign against the cult, like the LE agency is just trying to “get” the cult members on SOMETHING.

      • And was there any history of this in the episode? Unless there is that’s just speculation, and even then that still might be nowhere near enough to prevent a judge from signing off on a warrant.

  4. Would you even need a warrant to find 40 acres of marajuana? The fields are probably not with the curtilage of any homes and would likely be visable from the air.

    • No. When I was a camp counselor, there was an incident in which the camp’s neighbors had planted a stand of 30 marijuana plants (ie way less than 40 acres) on the camp’s property (the plants were too large to have be planted within the time that the camp had owned the property, since that’s clearly what people were thinking on that one). The DEA happened to fly by on the way to somewhere else and look out the window at just the right time to spot them. That was enough for the DEA to get a warrant to come and do a more thorough search. Granted, this was in Maryland, not New York, but I would assume that getting a warrant in NY based on visual identification by a DEA officer would be a similar process as in MD.

      • James Pollock

        There are some pretty big patches hidden away in the national forests on the west coast. I don’t know if any get to anything like 40 acres, but the growers get away with it by being deep in the woods far away from any roads. “40 acres” might be an exaggeration to suggest “big”.

      • If that was the case that’s another thing you could get them on in this episode, building an illegal farm on federal/state/town property (since there’s no way an authority in the present, recent past or recent future would give permission to build this).

      • James Pollock

        Yes, if you catch them. The federal government owns huge swaths of land in the west (some counties in Oregon are more than half owned by the federal government), much of which is preserved in roadless condition, some of which is roadless because it has no commercially-viable resources to extract. I don’t know how many really big forest tracts there are in NY, in either private or public hands, but you can get some pretty big grow operations that go undetected because the marijuana plants aren’t planted, like, six feet from the highway.

      • The point is that there are many, many routes the federal government could take to go after this group and that freedom of speech almost definitely isn’t going to provide that much protection.

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