HAVING POLICE SMILE FOR THE CAMERA: YOUR RIGHT TO PHOTOGRAPH AND VIDEOTAPE POLICE

The First Amendment protects the rights of private citizens to record police officers during the public discharge of their duties.  “There is no question that speech critical of the exercise of the State’s power lies at the very center of the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991).  The reach of the First Amendment’s protection extends beyond the right to gather such information – it also prohibits government officials from “punish[ing] the dissemination of information relating to alleged governmental misconduct.” Id. at 1035; see Butterworth v. Smith, 494 U.S. 624, 632 (1990) (speech relating to alleged governmental misconduct “has traditionally been recognized as lying at the core of the First Amendment”).

Federal courts have recognized that recording devices are a form of speech through which private citizens may gather and disseminate information of public concern, including the conduct of law enforcement officers. The First Circuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that “[b]asic First Amendment principles” and federal case law “unambiguously” establish that private citizens possess “a constitutionally protected right to videotape police carrying out their duties.” Id. at 82. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the “First Amendment right to film matters of public interest”); Robinson v. Fetterman, 378 F. Supp. 2d 534, 542 (E.D. Pa. 2005) (finding “no doubt that the free speech clause of the Constitution protected” plaintiff who videotaped officers because “[v]ideotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence”). The right to record police activity is limited only by “reasonable time, place, and manner restrictions.” Glik, 655 F.3d at 84; see Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010) (noting “even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions,” and finding “insufficient case law to establish a right to videotape police officers during a traffic stop,” an “inherently dangerous situation[ ]”).  This includes both visual and audio recording of the police.  See e.g., American Civil Liberties Union of Ill. v. Alvarez, 679 F. 3d 583 (7th Cir. 2012) (The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.)  As the Alvarez court emphasized, however, the right to record the police is not a right to interfere with police operations. The court said, “Nothing we have said here immunizes behavior that obstructs or interferes with effective law enforcement or the protection of public safety.” Alvarez. at 607.  Thus, “While an officer surely cannot issue a ‘move on’ order to a person because he is recording, the police may order bystanders to disperse for reasons related to public safety and order and other legitimate law enforcement needs.”  Id.

Incidentally, municipalities should know that Boston agreed to pay Glik $170,000 in damages and legal fees for infringing on his right to record the police.  Boston Settles Suit Over Recording Of Police Officers, WBUR, March 28, 2012, https://www.wbur.org/news/2012/03/27/recording-officers-settlement  This settlement is similar to the result in Phllips v. City of Newark where a High school student taken into police custody for filming a police incident on a public bus with her cellphone.  https://www.aclu-nj.org/cases/phillipsvcityofnewark#:~:text=The%20American%20Civil%20Liberties%20Union,she%20used%20to%20record%20video

There is no binding precedent to the contrary.

It does not matter if the speech sought to be disseminated relates to the police as government actors, even when acting in a private residence.  See City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); Norwell v. City of Cincinnati, Ohio, 414 U.S. 14, 16 (1973) (“Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.”); see also Jean v. Mass. State Police, 492 F.3d 24, 30 (1st Cir. 2007) (finding that activist’s recording of police officers’ “warrantless and potentially unlawful search of a private residence is a matter of public concern”).  “Peaceful verbal criticism of an officer who is making an arrest cannot be targeted under a general obstruction of justice statute such as Virginia’s without running afoul of the First Amendment.” Wilson v. Kittoe, 337 F.3d 392, 399 n.3 (4th Cir. 2003).

The Fourth Circuit has explicitly held that suppressing information critical of the police violates the First Amendment. In Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003), the Fourth Circuit considered whether sheriff’s deputies violated the First, Fourth, and Fourteenth Amendments when they suppressed the distribution of a newspaper critical of the Sheriff and his deputies. The Court held that “the seizure clearly contravened the most elemental tenets of First Amendment law.” Id. at 521. When law enforcement officers target materials “for suppression and retaliation because they disagree[] with its viewpoint and intend[] to prevent its message from being disseminated,” “[t]his by itself [i]s sufficient to violate the Constitution.” Id. Moreover, by suppressing constitutionally protected speech, law enforcement officers violated “both a speaker’s right to communicate information and ideas to a broad audience and the intended recipients’ right to receive that information and those ideas.” Id. at 522. The same principles apply here. If, as Mr. Sharp alleges, officers suppressed the dissemination of his recording of his friend’s arrest, such an action would clearly violate the First Amendment.

It is curious that law enforcement for years has used the line, “If you have nothing to hide, what are you afraid of?” to justify their actions.  Suddenly, with the advent of technology, the show is on the other foot and the government does not like it.  If you are interested to see the state by state response to the government being recorded, see Spy files – spying on First Amendment activity- state by state. https://www.aclu.org/other/spy-files-spying-first-amendment-activity-state-state