Author:De Stasio, Matthew A.

INTRODUCTION 962 I. CONSTITUTIONAL CLAIMS BY CITIES AGAINST THEIR STATE 965 A. The Common Wisdom of Political Subdivisions 966 B. Hunters Shadow Doctrine 967 C. Hunter as a Decision of Standing or Capacity 971 D. Hunter as Substantive Constitutional Law 975 II. THE DOCTRINE OF GOVERNMENT SPEECH 978 A. The Rights of a Municipal Corporation 979 B. Foundations of the Government Speech Doctrine 980 C. Weaknesses of the Government Speech Doctrine 983 III. PROTECTING GOVERNMENT SPEECH UNDER THE FIRST AMENDMENT 989 A. A Brief Word About the Object-Neutral First Amendment 989 B. Government Speech Furthers First Amendment Values 993 C. Purported Harms Done to First Amendment Values by Government Speech 997 D. Distinguishing Municipal Speech from State Speech 1002 IV. A MUNICIPAL SPEECH RIGHT APPLIED AGAINST THE STATE 1004 A. Marsh v. Alabama As a Limit on Hunters Reach 1005 B. The City of Boston v. Anderson Distinguished from Municipal Speech Claims 1006 C. The Most Recent Rule from Ysursa 1008 V. ANALYZING A GOVERNMENT SPEAKER'S FIRST AMENDMENT CLAIM 1012 A. Individual Privacy as a Compelling State Interest 1016 B. Administration of Justice as a Compelling Government Interest 1019 VI. A MUNICIPAL CLAIM THAT RESIDENTS HAVE A "RIGHT TO KNOW" 1022 A. The Scope of the Right to Know 1023 B. The Right to Know After United Reporting 1024 C. United Reporting Distinguished 1025 CONCLUSION 1027 INTRODUCTION

This Comment describes one approach to securing public access to the data collected by police-worn body cameras (PWBC). Ever since the rapid expansion of body camera programs following highly publicized police shootings (particularly the shooting of Michael Brown in Ferguson, Missouri, in the summer of 2014), state legislatures across the country have rushed to decide who should have access to the collected video and how to limit its public release. (1) Over half of the major police departments across the country are using body cameras supplied by a single manufacturer alone, and the storage and release of the video is an urgent issue. (2) The patchwork of laws governing the disclosure of PWBC data has left the public without simple or consistent means of accessing that information. (3)

Every state except New Hampshire exempts police records from public records requests. (4) Many laws which explicitly address the release of PWBC data either grant disclosure discretion to a custodians or a judge, (6) or they prohibit release entirely, absent special circumstances. (7) The myriad restrictions on public access has stymied the avowed purpose of implementing body camera programs: to increase the transparency and public accountability of police practices. (8)

The goal of fostering transparency to improve community relations would be more easily achieved if local governments and police departments, in the exercise of their discretion over local affairs, could publicly release video of contested police encounters without prior restraint.9 Some police departments seek to do just that, either in situations of suspected unwarranted police violence or matters of national importance.w For example, in October of 2017 the Las Vegas Police Department publicly released a compilation of PWBC footage only two days after the worst mass shooting in U.S. history took place. (11) Localities may seek to do so when it would improve community relations, inform public debate of police practices, and educate residents so they can effectively participate in the process of self-government. However, state statutes may prevent localities from securing these benefits for their citizens.

In this Comment, I argue that state laws which restrict disclosure of PWBC data by municipal governments run afoul of the First Amendment's Free Speech Clause and are subject to constitutional challenge by the municipalities themselves. Part I challenges the nearly century-old doctrine that local governments lack the power to bring constitutional claims against their own state, concluding both that the doctrine lacks consistency and that it has not been, nor should be, applied to a free speech claim. Part II examines how the Supreme Court has treated speech by government entities under the First Amendment, concluding the question of protection for such speech, which could serve as the foundation for a constitutional claim by municipalities and police departments against state statutes which restrict the release of PWBC data, remains an open question. Part III argues for the protection of government speech under the First Amendment, suggesting that there are strong jurisprudential and policy arguments for extending protection to government speech, particularly when the government speaker is a municipal entity. Part IV assumes that government speech is protected under the First Amendment and examines whether a local government entity could bring a free speech challenge against its creating state. Part V offers a broad-strokes analysis of such a hypothetical First Amendment free speech claim by a municipality, assuming restraints on PWBC data disclosures are content-based prior restraints on speech subject to strict scrutiny. Part VI examines, as an alternative to a claim by a protected government speaker, a public "right to know" claim by a local government plaintiff against state restrictions on releasing PWBC data consistent with the Court's decisions on local government powerlessness to bring constitutional claims of its own.


    State laws restricting the release of PWBC data bind local officials. For a municipality to challenge such laws under the First Amendment Free Speech Clause, it must be able to state a claim against its creating state. The common legal wisdom is that municipalities, as creations of the state, have no rights which they can assert against their creator. 12 In this Part, I first analyze the cases that form the foundation of this majority rule. Second, I examine cases which have permitted municipalities, despite this majority rule, to raise constitutional claims against their creating states. Third, I argue that the rule is not grounded in doctrines of standing or capacity, but rather is limited to substantive constitutional provisions. Finally, I argue that the First Amendment is not a provision to which the rule has been, or should be, applied.

    1. The Common Wisdom of Political Subdivisions

      The oft-quoted rule of local government law is that municipalities are state creations without rights beyond those given to them by the state and that the state may take away those rights at its convenience. (13) This common legal wisdom stems from the Court's dicta in Hunter v. City of Pittsburgh, (14) wherein it noted that the state "may do as it will, unrestrained by any provision of the Constitution of the United States" with regard to its political subdivisions. (15) Hunter addressed whether citizens of Allegheny County could challenge Pennsylvania's decision to merge the cities of Allegheny and Pittsburgh over their objection. (16) The citizen plaintiffs argued that the state's combination of the two cities deprived them of due process of law by "subjecting [them] to the burden of the additional taxation which would result from the consolidation." (17) Rejecting this argument, the Court held the citizens had no right to the continued existence of their municipal corporation because:

      Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the State as may be intrusted [sic] to them .... [T]he powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the State .... [T]heir charters [do not] . .. constitute[] a contract with the State within the meaning of the Federal Constitution. The State, therefore, at its pleasure may modify or withdraw all such powers... with or without the consent of the citizens .... [T]he State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. (18) Hunter thus spawned a doctrine of local powerlessness which has characterized the municipal corporation as "merely a department of the State"w without independent constitutional status. In the following decades, the Court employed this doctrine to bar constitutional arguments by municipalities under the Takings and Contracts Clauses, (20) and the Due Process (21) and Equal Protection (22) Clauses of the Fourteenth Amendment. The language of these cases has been cited by the Court sporadically since the early twentieth century without further analysis or indeed any explanation for the general proposition that a municipal entity cannot invoke constitutional provisions against the actions of its creating state.23 Many lower courts have latched onto this broad doctrine to completely bar constitutional claims and defenses by municipalities asserted against acts of their states. (24)

    2. Hunter's Shadow Doctrine

      Despite its sweeping rhetoric, Hunter itself has not been applied by the Court to bar a municipality's constitutional challenge to a state law since Williams v. Baltimore was decided in 1933. (25) Its broad principle has never been critically examined by the Court, (26) despite being deployed inconsistently since that time to bar municipal claims. (27) Dissenting Justices have at times noted the oversimplified nature of the doctrine and the doctrinal thicket in the lower courts which is the result of its scattershot application. (28) For their part, legal scholars view the Hunter doctrine as "analytically muddled" (29) and in need of an overhaul. (30) Lower courts have recognized its force as "waning with time." (31)

      In recognition of the doctrine's odd disappearing act, the Court has noted Hunter is not the absolute bar its dicta claims it to...

To continue reading