Transcript - "The Camera and the Law"
February 15, 2024 -- Spring 2024 Law & Humanities Forum Series
Listen to "The Camera and the Law".
BRYAN WAGNER: Hello everyone. So welcome to the third event in our Law and Humanities Lecture series.
Today we will be hearing from Julie Stone Peters, who will be speaking to us about her current research project or one of our current research projects, “The Camera and The Law”. Thank you so much, Professor Peters, for being with us.
My name is Bryan Wagner. I'm a professor in the English Department, and I have had the pleasure of organizing this lecture series with Leti Volpp, the Robert D. and Leslie Kay Raven Professor of Law and Director of the Center for Race and Gender. The center is delighted to host this series, along with Berkeley Law and the Division of the of Arts and Humanities.
Many thanks to Ariana Ceja for helping with the logistics for this event.
I'm going to make a land acknowledgement and then I will introduce our speaker.
We recognize that UC Berkeley sits on the territory of xučyun (Huichin) (hooch yoon), the ancestral and unceded land of the Chochenyo speaking Ohlone people, the successors of the sovereign Band, the sovereign Verona Band of Alameda County. This land was and continues to be of great importance to the Muwekma Ohlone Tribe and other familial descendants of the Verona Band.
We recognize that every member of the Berkeley community has benefitted, and continues to benefit, from the use and occupation of this land since the institution’s founding in 1868. Consistent with our values of community, inclusion and diversity, we have a responsibility to acknowledge and make visible the university’s relationship to Native peoples. As members of the Berkeley community, it is vitally important that we not only recognize the history of the land on which we stand, but also, we recognize that the Muwekma Ohlone people are alive and flourishing members of the Berkeley and broader Bay Area communities today.
To build on this verbal acknowledgment, the Center for Race and Gender pays the Shumi Land Tax as a small way to contribute to the healing of this history, the sovereignty of the Ohlone people and the preservation of their culture.
So Julie Stone Peters is H. Gordon Garbedian Professor of English and Comparative Literature at Columbia University, an affiliate, an affiliated faculty member with Columbia Law School and the Global Professorial Fellow at Queen Mary, University of London School of Law. At Columbia, she created the Graduate Certificate and Undergraduate Major in Human Rights, and currently serves as the co-chair of the Theater and Performance Ph.D. Program.
Professor Peters is an expert in law and humanities performance and film and comparative media. Her most recent book is “Law as Performance: Theatricality, Spectatorship, and The Making of Law in Ancient, Medieval, and Early Modern Europe,” published by Oxford University Press in 2022. Previous books include, “Theater of the Book Print Text and Performance in Europe, 1480 to 1880,” Oxford University Press, 2000, and “Congreve, the Drama and the Printed Word,” Stanford University Press, 1990.
Her monograph “Staging Witchcraft Before the Law: Skepticism, Performance as Proof, and Law as Magic in Early Modern Witch Trials,” is forthcoming from Cambridge University Press. She is co-editor of the Cambridge Elements in Legal Humanities Series and is currently working on several projects, one of which she will be discussing with us today. We are thrilled to have Julie Stone Peters with us.
In coming weeks the series will continue with other speakers, Vicki Bell, Marco Wan, Renisa Mawani, and K-Sue Parks, K-Sue Park. We will hope to see you all again.
Then Professor Peterson's presentation will be followed by a brief question and answer period. We'll conclude this public event with refreshments around 11 o’clock. Without further ado, Julie Stone Peters.
JULIE STONE PETERS: Thank you so much.
[AUDIENCE CLAPPING]
JULIE STONE PETERS: As Brian Indicated the sort of cryptic title,”The Camera and The Law,” that I gave you refers to the current project, which is still at a very, very early stage.
And and the second part, six axioms in three scenes is about what I'm going to talk about today, which is instead of giving you a kind of deep dive section of the project, I'm going to give you an overview. In the.
So in the project I spent a lot of time with seeing, like unpacking scenes. Here I'm going to completely trivialize and simplify them to use them, to illustrate what I've grandly called axioms. I probably should have downgraded these two thoughts in progress. You know, six thoughts in progress in three scenes, too, too many propositions.
Anyway, before telling you more about the project, I'm going to plunge you in media's race into one of the scenes which shows a particular genre of anti-police activism that arose about a decade ago with cameras as its main tool.
And here's how it normally works. Activists called First Amendment auditors with cameras, confront the police. Police officers at checkpoints or in the streets. The police officers demand ID's, the activists say no, and then declare their rights with a dazzling torrent of legal citations.
So I'm going to give you two short YouTube clips that don't fully capture the drama of the genre. There's no time for the full thing, but should give you some idea. OK, here is the first one.
[YouTube video playing with audio]
SPEAKER ONE: Potential investigation.
SPEAKER TWO: You have to have you have to articulate the actual crime.
So there's no crime being committed, just a guy with the camera walking around. You have no right to detain me. Just so you know, if you interfere with my activity in any way, shape or form. You will be in violation of California Penal Code, 148.G, and the Tom Bain California Act, which you can lose your qualified immunity. I will sue you personally, 152.2 subsection B. Think your words wisely.
JULIE PETERS STONE: OK. That's one and here is another one.
[Second YouTube video playing with audio]
SPEAKER ONE: Your hands off him.
SPEAKER TWO: Get the fuck off my car.
SPEAKER ONE: Your hands off
SPEAKER TWO: Don't touch. Don't touch our car.
SPEAKER THREE: The officers seen as the citizens know their rights. Start going rouge.
SPEAKER ONE: Yeah, I've got it for your job. Come for it.
SPEAKER TWO I am.
SPEAKER ONE: Come for it.
SPEAKER TWO: I'm coming for your job.
SPEAKER ONE: Come for it. I'm coming for your job.
[Scuffle Sounds]
[Clapping]
JULIE PETERS STONE: Ah okay. So it's clearly an entertainment genre as you saw only a little bit. Sometimes the insert like cartoon characters, but to make it entertaining, part of the point is to completely get in the cops face with the camera. And if the officer goes on attack as in the video. Vidtory. the activist crows in triumph, Lawsuit! I just got you fired and then post it on YouTube with titles like Unhinged Cop or Wow, Man, Bbsolutely destroys cops with the law.
OK, so. Before I come back to that scene.
I'm I'm going to come back to it, but I'm going to say a little bit more about the current project, whose working title at least yesterday, you Know who knows?
What was/is, “Law Before the Camera in the Age of Streaming Media.” And I was thinking a little bit about Kafka's great parable “Before the Law,” but really about the way coming before the law today is coming before the camera. Police, body cams, dash cams, security cameras, courtroom television cameras in police cars, and interrogation rooms, and prison cells.
And we're all really even, even those of us who don't come before the law, quite in that way are subject to unprecedented video surveillance.
There's a famous essay that some of you may know by Deleuze from 1990 called “Postscript on the Societies of Control,” and his basic point is we're no longer in Fuku's disciplinary society. We're sit in a society of constant ID checkpoint control, but in fact 1990 to 2024 we live in a culture of camera policing that he could not have dreamed of.
Meanwhile, we get law round the clock on our screens, on our phones, in the form of streaming images. Law and crime network, duty, justice, cops, looping news feeds of celebrity trials or videos like the ones we just saw. Some of you are probably familiar with the famous passage in Altus. There, where the cop says I always love this because it's specifically about law, even though you know critical people use it for all kinds of things.
There's a cut. You're in the street, the cop says to you, “hey, you.”
You turn, you’re legal subject. It's all to say really says you're an ideological subject, but mutatis mutandis.
Anyway. He describes it as the moment when we're hailed. But law is constantly hailing us from our screens. In a sense, it's our screens that produce us as legal subjects.
And meanwhile, we are hailing law right back with our cameras, our keyboards and our own screens.
When there's one theorist who I I don't really like this word, he used the word and not we're in. We're in a society, not of surveillance, but to veillance. You know, maybe hetero veillance.
But basically, everyone is surveilling everybody else. Else,
Bernard Harcourt has a really interesting book on this called the “Expository Society,” where he basically argues we're all both exposed and exposing ourselves around the clock on Instagram, TikTok. We're part of a kind of 24/7 libidinal social drive where voyeurism and exhibitionism are inseparable.
So all this has unfolded over the last decade or two, so really, the central question of my project is: What does this technological revolution mean for law?
And you tend to get two kinds of answers to that question in insofar as people have been thinking about this in academic circles, one is the macro theoretical, zoomed out perspective of social, social and media theory. So with titles like, “Jurist Capitalism as Scopic Violence”. That's one.
Thing the other is the really micro jurisprudential with legal scholars focused on tiny rules with type parameters that produces articles like, “Cameras and Law enforcement Agencies: Issues and Perspectives”.
So I, I actually draw on all of this work from the macro to the micro and I and I do think about certain doctrinal or policy questions like, you know, what kinds of videos should judges allow jurors to watch? Should police officers be required to wear body cams as they are only in some state?
It's. But really my my primary approach is not narrowly legal or macro theoretical, but looking closely at specific encounters between law and the camera. And I I look especially at encounters that don't simply illustrate political points, but presumably my audience already agrees with.
I I take it pretty much as a premise that US policing and the carceral; system are structured around anti-black violence and capitalist exploitation. And that the camera is most often probably a prosthesis of power from way back in the first mug shots, to its use as a torture device in interrogation camps like Abu Ghraib.
But I'm I'm more interested in moments where the camera is a site of a kind of power struggle and where law is chaotic. Even clueless basically scenes where people mess with law.
So that is the same irresistible urge. I'm sorry to say, as in my my the the two books that Bryan mentioned, my recent and forthcoming books. And this is the now word from our sponsors moment. I happen to talk to my editor who said show them the beautiful covers so. [LAUGHS]
[AUDIENCE LAUGHS]
So there there are. There's the the last performance is 2022, “Staging Witchcraft “will come out sometime. Sometime this year. I actually made-up the “Staging Witchcraft”cover. It's not going to look nearly that cool.
And in some ways, the projects are continuous. Is it, you know, like ancient medieval and early modern was clearly not enough. I had to go into the 21st century.
It is true that the new project shares some methodologies and premises. For instance, in all of these projects, I I look at real legal events. I don't. I love literature. I don't look at literature. I love fiction films. I don't look at fiction films. I look at real events as they're represented.
And I I look at law as a demonstrative practice that unfolds not just through doing, but through this famous phrase in performance studies “Showing doing”. And I do close readings. What I you know, for lack of a better phrase, I call close readings of events, material phenomenological, effective, spacio, temporal atmospheric, audio visual effects and lots of other stuff.
And there are definitely some continuities over the the long duray from the ancient all the way to today that are really important to my thinking. But the project really isn't about continuity. Instead, it's about how law in our particular about law, in our particular culture of cameras and streaming media, is.
So back to our YouTube. Wow, Unhinged Cop. These this genre of performance is produced with and for the camera.
Which takes me to my first axiom, Heisenberg's camera. The cameras the proposition is the cameras presence alters the event. In fact, it Heisenberg wasn't really the one who formulated the observer affect. But you know, not only do people associate it with him, he actually thought he invented it, so we'll call it that.
Anyway, the basic idea is the camera isn't a passive, transparent or invisible device for recording legal encounters, even when the cops pretend to be doing business as usual, or even when, and this is Michael Fried's famous formula, even when there's a pretense of absorption in the in the legal moment, as opposed to theatricality, playing for the camera.
Even when there's absorption, when the camera is present, we're not seeing how law works. We're seeing how it works under the eye of the camera.
So in the First Amendment Auditor, since this principle is,
I see it's really is it, is it visible? Well, I can't really fix it now. It's small all right.
In these First Amendment are scenes, it's kind of writ large because the camera is obviously a major actor in the scene. But even when the camera sits passively by it alters the event it actively produces and intervenes in the scene.
Which gives rise to a corollary axiom camera as third. The proposition is the camera acts as a spectator, inviting participants to perform for it. So the camera may be an actor, but it also represents a kind of ideal spectator who sometimes imagined as divinely omniscient. And, you know, I don't play with Lacan very often.
But if we wanted to give it a kind of Lacanian cast, you could say that it acts as the Lacanian third. Who stands as the figure of the father and the editable editable triangle where you know. You are trying to figure out what your mother desires and what she desires as a father, but the father stands for the law with a capital L.
So the so the camera is sometimes a kind of fantasy projection of the father who sees all and stands for law, but more simply, dumping Lacan, it's really just the third figure in the encounter, which is in a way, both outside of the encounter, but necessary to it.
And and the key thing here is that the cameras presence not only changes the invent, it invites performance.
Sometimes it invites a performance that's a pretence of non-performance. We're really not performing, but nevertheless, before the camera, both officials and subjects perform, at least in part, for the camera.
OK, second scene, this one. I don't have a video. I'm sorry.
October 9th, 2018. in Winterville, NC, White Police officers William Ellis and Myers Helm are following a car Helms. And in the front seat, there are two black men and unnamed driver, and his friend Dijon Sharpe, who I've spent a lot of time talking to Dijon about the case. Anyway, Helms approaches the car. He charges the men with several totally minor violations, including not wearing a seat belt. Well, it turns out that they just took their seat belts off. After the car was stopped. But this is just the classic mode of harassment.
And sharp and the driver are very polite, but it turns out that sharp had been tased, choked, and very badly beaten by the police a year earlier. And so, after watching videos like the YouTube ones you saw earlier, he was ready. He starts live streaming the encounter to his Facebook. Facebook Live. And so here's the dialogue.
This is officer Helms. What have we got? Facebook live cuz.
Sharp. Yeah.
Helms, you can film we film too. But Facebook live, we're not going to have that. And then Helms reach us through the open window there.
By the way, there's a later incident where that he also that Dijon also got on camera where you see him being dragged out of the the car by the cops. Anyway, he tries to grab Sharp's phone, he misses. He then grabs sharp by anything he can get shirt. Seat belt. Keeps missing and he finally threatens if you don't give up your phone, you're going to jail, you understand?
Meanwhile, and you can see this in the live stream video, which is still accessible. There are written comments from Sharp's Facebook friend flying in as he offers running commentary, and this is a this is a screen capture from the from the live stream.
You know what the **** did he just grab your phone? You're going to jail if you're recording? I need proof of this law? Be calm. Stay safe, bro, and keep your live on.
So there's this is this is one that doesn't end in tragedy. There's a big smile on Sharp's face as he turns to his live stream and he says you all just saw the man grab me. You saw this shit. What are we going to do about it? Lawsuit. P. Helms you got a lawsuit coming.
So P. Helms did have a lawsuit coming. Sharp suit, Helms Ellis and the Winterville Police Department for violating his First Amendment Rights and the central question in the case was did he have a right to live stream? To keep his camera?
And the trial courts holding And it's it's it's more complicated when you get to the appeals courts, but I'm no time for that today. Anyway. The trial courts holding is maybe he had a right to film. It should have said he did. But anyway they said only maybe. But no right to live stream.
So the opinion is really weird and this is another part of the project that I wasn't going to talk about today, but you can find in a lot of these opinions, you know, incredible theories of media. Some of them really stupid. But there's this kind of jurisprudence of media.
Anyway, the basic point here is that the. The the opinion, the the opinion and I think it was unanimous, if I remember the opinion, argued that when a sub suspect livestreams.
Dreams. He oh oh, it hinges on what they call a scenario.
And they keep repeating this over and over. It's a scenario. It's totally imaginary scenario when a suspect livestreams. He could be calling on people to mount a coordinated attack on the police and the livestream might even show the attackers weapons inside the car that the police can't see, emboldening the attackers. Live streaming and emboldening the attackers, AKA the people he imagines as sharps friends. So that is live streaming, endangers the public.
And the word public is really key to the opinion in all kinds of complicated ways. But mostly the opinion has to work super hard to segregate the kind of public the police are supposed to protect. That is, the police are public servants performing duties in the name of public safety.
And implicit in the opinion is the fact that sharp and his friends are not a legally cognizable public. They're not the ones the police are supposed to protect. But and this goes to the next oops, there the next axiom.
Actually the video of the livestream offers a very different vision of the public, a kind of counter-public. So the axiom is the camera proposes alternative legal publics.
Sharp insists, and this sort of has two prongs, Sharp insist that he and his friends are both laws audience the public in the in the sense of a public audience and the public. The law is supposed to protect but but doesn't.
And that's it's all really interesting with the figure of the the safety belt, which basically the cops used to sharp with the supposed safety belt. It's for your safety. It's for your safety. Let me grab you.
Anyway, alright so. To get to the next axiom, which is a kind of corollary, I want to zoom in on a specific moment in the livestream, which is at one moment sure pauses the video for a second. It's like he makes a cut and then he points at the side view mirror. And that's what you see up here. And what we see is he's holding up the phone like a kind of shield for his face, you can't really see it, but the. he the phone is covering his face there and there and in the mirror, very tiny in the distance of the police is the police car with the officers.
And you know that you can really see the warning on the mirror objects in the mirror are closer than they appear and the mirror is at a skewed angle. Like all rearview mirrors.
But there's a reason you know, one feels there's a reason Sharpe was interested. Obviously, he wanted to see what the cops are doing. But effectively he creates a kind of cinematic cut that offers a perspectival shift. It reminds us, first of all, of what film theory has always recognized. Is that video never offers a transparent rendering of events. That you know the documentary camera always has a point of view. But here my my point is more specific to the conjunction of law and the camera.
Oh next one. OK, so audio-visual counter chronotypes.
Oops, sorry I had to. I had to do. I kind of compressed two things in here because I had to get it all and I didn't want to do more than two per scene. The camera proposes alternative audio-visual chronotypes ways of framing time and space.
And I I take the word chronotype well, it's really it's. It's a word from that Bactine developed. But there's a wonderful book by Marina Valverde called “Chronotypes of Law”. So I've really in a way taken it from her.
So the camera shifts time, Chronos and space, topos, the time and space topos of law, Chrono, topo.
And it also, and this is where the audio-visual partly comes in it also offers what Jacques Rossier called and I'll an alternative distribution of the sensible that is. Rosier argues that what is visible and audible is unevenly distributed, which is clear. There's certain things we just don't see. And the camera can at least attempt to offer redistribution of the sensible.
So in this cut into the mirror, which is itself a kind of optical device, Sharps seems to be implicitly thematized the operation of the camera. What you see depends on the angle of the camera and screens. And the camera allows you to look at law obliquely through the lens and mirror of your live stream.
Alright, third scene, November 29th, 2017 in the courtroom of the International Communal Tribunal for the former Yugoslavia. The ICT Y 72-year-old Croatian General Slobodan Praljak has been found guilty of war crimes and crimes against humanity and his final appeal is being livestreamed on new screens around the world.
So Praljak is listening in grim silence to the verdict.
And here is Judge Carmel Agius. Affirmed guilty, Mr. Pravat, you may be seated. Praljak remained standing. Mr. Praljak you may be seated. Still standing.
And then Praljak, Judges, Slobodan Praljak, is not a war criminal.
I'm. I'm actually going to go to the image of him because it gives you a really good idea.
I reject your judgment with contempt. His right hand is shaking. He lifts a small brown vial to his lips and he drinks. He totters, his eyes glazed. He slumps to his seat, choking, and he says I have taken poison. So Judge Agius stop. Please sit. Please sit down. Next, defend it. That's really weird.
Court official says we have a problem here. Praljak. It's poison. I have taken Judge Agius. OK, OK, we suspend. We suspend. Please the curtains. Somebody quickly draws the curtains and the screen goes dark.
And now I I had I would have had some discomfort in using the suicide, were it not for the fact that he clearly wanted this to be broadcast on screens around the world, and I feel certain would have been very pleased with what I do with it, complicated as it is.
So before he became a war criminal, he was actually a theater and film director affiliated with the prestigious Zagreb Academy of Dramatic Art and the video of his suicide shows how carefully he staged his final act of protest for the cameras.
He knew it would be shown billions of times on news loops for billions of spectators around the world, which takes us to the next axiom, screen futurity.
The imagined future screen proleptically shapes the event. That is it it the event looks forward in time to the Imagine future screen and speaks to it.
And the idea is, in a sense, an extension of the the camera as third proposition. And really I'll always implicit in it. But it's not just that the camera is a spectator, it's that participants imagine watching themselves on future screens.
So this is certainly true in the with the First Amendment Auditor videos performing for the police and for the camera, but also for these future YouTube videos that they're going to create and Praljak is performing for posterity in the form of future news loops that he knows are going to loop and loop again because it's very sensational.
So first, you know, we have to go back here. So first we have this. This is just before the suicide and then we have this. This is Croatians hanging a portrait of Praljak t with the message your sacrifice will never be forgotten. Praljak is actually a kind of incredible character. He represented himself for most of the trial. He writes thousands and thousands of pages that he put from prison that he posts on his website. And he's philosophical, angry, cajole and combative, often incoherent or downright rude in these in these rants that he that he both writes and speaks in the trial.
You know the the rants are liberally sprinkled. That bullshit, piss, fuck, as in FUCK YOU, COMRADES s in all caps. But So what he does in this final moment is he stages a suicide as a as a kind of form of heroic tragedy. And I have a lot to say about that, but I'm not going to say here. But when you put together his attacks on the ICTY with the suicide it becomes clear that the suicide acted out his critiques of the tribunal in in various forms.
And they they the relationship between the heroic tragedy and the critique is a little too complicated to go in here. But I'm. But I'm going to tell you what the critiques are. It's a critique of international criminal tribunals western imperialism. It's a critique of the idea of individual responsibility for mass atrocity. It's a critique of the tribunal, sort of faux humanitarianism.
Oh, we don't have the death penalty because we're so civilized. It's critique critique of the tribunal's promise of catharsis. After all this trauma, we will produce catharsis for in Bosnia, and it's especially a critique of the tribunals deployment, explicit deployment of Hanna Arendt’s concept of the banality of evil. This comes up again and again and again. The tribunal actually said the prosecutors and the judges talk about Ardent.
Kind of weird.
And essentially in a way he's staging what what I called judicial suicide, which is a kind of parallel to judicial murder. That is a protest against criminal suicide as a protest against criminal courts. Courts that have criminal jurisdiction but are in fact criminal themselves.
So this takes us to the last of my axioms, the projective V effect, Frenden’s effect, which is Brecht famous theory. That is the the camera has an ability to project images outside the frames of law, and that can act as kind of alienation.
In fact, take taking you outside the frames of law and revealing just how strange law is. Saying what basically Brecht thought Peter would help us say. Which. Things don't actually have to be the way they are. They could be really different and you can see that when you estrange, when you use an alienation device.
So in a sense, this is a more general version of axioms 3 and 4, camera counter, publix and audiovisual counter chrono topes.
Hmm.
Except one more thing to say about this in Brecht, the Frenden’s effect is a vehicle of revolutionary political change. Marxist political change in Praljak. It's a vehicle of revolutionary political change too, but he's using it against something that we.
Maybe half believe in which is holding people responsible for atrocity.
So working on Praljak,
I think I had. Well, I had my I'm able to go to my axiom.Seems I have them all. No, I'm not going to do that. Sorry. Oops. OK, here we go.
Working on Praljak has brought me face-to-face with some very uncomfortable things. And I like being brought face to face with uncomfortable things. Usually when they're not too much in real life. His critiques of the of international criminal tribunals are very like the critiques of critical legal studies, and I agree with a lot of them.
And he's kind of a lot like Sharp in using the camera to create a legal counter-public, and to create audiovisual counter chronotypes and the only problem is he's a murderous war criminal.
So what exactly are the politics of the legal camera? What I what I argue and and this is really what I've argued about legal performance in the in the earlier books too, particularly in laws performance. The camera is indeterminate. It's capable of manipulation. It can swing both way. It will really all ways.
So if if they ask the question in a somewhat narrower and more pointed way, and I think a way that we all care about. You know, will cameras redress laws, structural inequities? And my answer is probably not, sadly. Because law, like capitalism, has tremendous elasticity. It breaks people without itself breaking.
But can cameras sometimes regress laws? Structural inequalities? Can it sometimes be agents of moments of what we might call audiovisual justice? And I would say yes.
Every so often, yes.
And when I was finishing this, my notes for this talk, there's a line from a Leonard Cohen song that I really love that keeps coming to me every time I think about this, “there's a crack, there's a crack in everything. That's how the light gets in.” So with Dijon Sharp's Facebook friend, I want to say keep your live on. Thank you.
[AUDIENCE CLAPPING]