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Research and E-Learning design by
Dr. Nathan C. Walker, March 2020

The First Amendment Right to Record Police

Does the First Amendment protect the recording of police activity in public?

In 2019 more than over 81% of Americans owned a smartphone, as compared to 35% in 2011. This has given rise to “citizen journalists” who record and disseminate videos of police officers performing their duties in public. Does the First Amendment protect them, or can the state prohibit the recording of police activity?

Objectives

1. Identify First Amendment protections for gathering information.
2. Examine the corollary rights of creating or disseminating content.
3. Distinguish “time, place, and manner” limitations for recordings.
4. Explain the constitutional rights afforded to citizen journalists.

WARNING

The following material includes descriptions, images, and videos that are graphic and violent.

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Introduction

The legal right to record police officers in the course of carrying out their duties in public is critically important in the ability of journalists and citizens to hold the government accountable. Recordings of police officers mistreating suspects, of course, has spawned a larger political movement to reform police practices. It has also brought conflict between police officers and the people who are recording them. However, six federal appeals courts have upheld a First Amendment right of citizens to record and document the actions of police in the course of their duties.

To understand these developments, we will first examine how newsgathering has been democratized with the rise of citizen journalists. Then we will briefly survey the developments in the courts so that you can apply the First Amendment rights to speech and press to three issues: (1) The right to gather information; (2) the right to share information; and (3) the legal limitations placed on these rights.

The Rise of Citizen Journalists

Democratizing Newsgathering​

Recording of police misconduct has its origins in the 1991 beating of Rodney King by Los Angeles police officers. But the technology to record and distribute videos was far less advanced. A bystander used a handheld video recorder to tape the brutal beating of King, and in order for the footage to be seen, he had to go down to the local TV station, submit his videotape, and hope that the station would air it. It did—the video helped to spark five days of rioting in LA after the police officers involved in the King beating were acquitted, and it spurred a nationwide debate about police officers’ treatment of minorities.

In the 1990s, citizen journalists had to record footage on handheld video recorders, take their footage down to the local TV station, and hope it would air on the nightly news. Today, more than 264 million Americans own smartphones, giving them the power to record and share news instantaneously.

Recording Capabilities

In 1991, 8% of Americans owned camcorders
8%
In 2011, 35% of Americans owned smarthpones
35%
In 2019, 81% of Americans owned smarthpones
81%

Disseminating Capabilities

0

Percentage of YouTube hours
viewed from mobile devices

0

Hours of video uploaded to
YouTube every minute in 2019

0

YouTube hours
watched daily in 2019

0

Monthly active users on Facebook
in 2019, with one billion
mobile-only users.

0

Daily views of videos on
Facebook in 2019, 20% of which were live broadcasts by Facebook users.

The advancements in video recording devices, along with the ability to allow individuals to disseminate videos and images on social media platforms, has given rise to a new set of First Amendment challenges. Consider these technological trends in light of the rise of the #BlackLivesMatter and #BlueLivesMatter movements.

On July 17, 2014, police accused Eric Garner, a 43-year-old black man, of selling individual, untaxed cigarettes. Garner had been arrested twice earlier that year for the same offense. This time, however, Garner pleaded not to be detained. His friend, Ramsey Orta, recorded the arrest on his cell phone: five officers swarmed Garner, and wrestled him to the ground and handcuffed him. During the scuffle, officer Daniel Pantaleo put Garner in a chokehold, a maneuver prohibited by the NYPD. Gardner pleaded for help, “I can’t breathe,” a phrase the footage shows him repeating 11 times. Garner was not given CPR by the officers or the first responders who arrived on the scene. He was taken to a local medical center and pronounced dead. The medical examiner ruled Gardner’s death a homicide as a result of the chokehold. 


Because Orta recorded Garner’s arrest, we, the people,—and his family—saw precisely how Garner died. The first official police report about the incident failed to note officer Pantaleo’s chokehold, but, after its correction, he was suspended without pay. Five months later, a Staten Island jury chose not to indict Pantaleo for lack of probable cause. The jury’s decision led thousands of people to take to the streets in protest. Garner’s last words, “I can’t breathe,”became a viral hashtag shared 1.3 million times, and became a global protest cry. His death was the first of a string of viral videos in 2014–2015 that captured the nation’s attention.

Three weeks after Garner’s death, on August 8, 2014, Ferguson, Missouri police officer Darren Wilson drove up to Michael Brown, a black 18-year-old, and ordered him to move to the sidewalk. They began to argue,  and a two-minute conflict escalated, leading Wilson to shoot the unarmed teenager six times. Although there was no footage of the shooting, a string of bystander videos showed Brown’s bleeding body lying in the street for four hours while Brown’s mother cried for help. The shooting ignited11 days of protest in Ferguson, leading the Missouri Governor to declare a state of emergency. 

Three months later, surveillance footage showed a police officer shoot and kill Tamir Rice, a 12-year-old African-American boy who was playing with a toy gun in a public park in Cleveland, Ohio. Two days later, back in Ferguson, Missouri, it was announced that the officer who killed Michael Brown would not be indicted. These events further galvanized the Black Lives Matter movement, which began as a social-media hashtag a year earlier when George Zimmerman, a neighborhood watch captain, was acquitted of shooting and killing Trayvon Martin, an unarmed black teenager.

Similar incidents continued to occur between white police officers and black residents. In the spring of 2015, cellphone footage captured the murder of Walter Scott, and the violent arrest of Freddie Gray, who died of a spinal injury while in police custody.  Later that year, bystanders used smartphones to capture police abusing two teenage girls, one at a pool party in Texas, and the other in a South Carolina high school. These and other alarming videos taken by citizen journalists, brought attention to police interactions with citizens— especially with people of color.

The Blue Lives Matter police countermovement started on December 20, 2014, in response to a gunman murdering two New York City police officers in revenge for the deaths of Eric Gardner and Michael Brown. And in July 2015, the hashtag #BlueLivesMatter began trending in response to the murder of five police officers in Dallas, Texas, and three officers in Baton Rouge, Louisiana. 

Collectively, these events demonstrate a shift in how news is gathered and shared. Does the recording of police help create an informed democratic citizenry, or do it they inflame people and encourage violence? The sociological pattern reveals a trend: the videos themselves do not cause unrest, but rather that people protest and riot when they perceive the justice system has failed them.

Federal Appellate Courts

As of 2019, sixty-one percent of the U.S. population lives in states where federal appeals courts have recognized a First Amendment right to record police officers performing their official duties in public. The U.S. Supreme Court has not ruled on the issue. As a result, legal protections are fully secure only in those jurisdictions where federal circuits have issued a ruling. However, given the resounding support so far for this First Amendment protection, it seems highly likely that the remaining federal appeal courts would reach the same conclusion if the issue appears on their doorstep.

As of 2019
Askins v. U.S. Department of Homeland Security
(2018)

In Askins v. U.S. Department of Homeland Security, 899 F.3d 1035 (9th Cir. 2018), the Ninth Circuit held that people have the First Amendment right to photograph patrol officers at the port of entry of the U.S./Mexico border.

Fields v. Philadelphia (2017)

In Fields v. Philadelphia, 862 F.3d 353 (3rd Cir. 2017), the Third Circuit held that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”

Turner v. Driver
(2017)

In Turner v. Driver, No. 16-10312 (5th Cir. 2017), the Fifth Circuit held that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”

Gericke v. Begin
(2014)

In Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014), the First Circuit ruled that, under the First Amendment, “private individuals possess a constitutionally protected right to videotape police carrying out their duties.”

ACLU of Illinois v. Alvarez
(2012)

In ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), the Seventh Circuit ruled the state’s eaves-dropping statute did not apply to the recording of police officers’ activities  when done in public.

Glik v. Cunniffe
(2011)

In Glik v. Cunniffe (2011),  the First Circuit ruled there  is “a constitutionally protected right to videotape police carrying out their duties in public” and that the right was “fundamental.”

Smith v. City of Cumming
(2000)

In Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), the Eleventh Circuit affirmed that people have a First Amendment right to film government officials conducting official duties in public.

Fordyce v. City of Seattle
(1995)

In Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995), the Ninth Circuit held the “First Amendment right to film matters of public interest,” as when Fordyce filmed police activity during a public protest. 

First Amendment Issue I

The Right to Gather Information

Although the U.S. Supreme Court has not ruled on the precise question of recording police activity, in Branzburg v. Hayes (1972), the High Court held that “without some protection for seeking out the news, freedom of the press could be eviscerated.” And in First National Bank of Boston v. Bellotti (1978), the Supreme Court held that the First Amendment “goes beyond [the] protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” This particular “stock of information”—recordings of police officers carrying out their duties in public—is critically important in the ability of citizens to hold the government accountable, a central tenet of the First Amendment.

Bystanders now have the capability to document news in a way that only journalists and film crews could do in the past. But do bystanders have the same First Amendment rights as journalists in gathering the news? The courts have said yes. 

The U.S. Supreme Court has been reluctant to define what constitutes a newsperson for purposes of constitutional protection, saying in Branzburg v. Hayes (1972) that such an effort “would present practical and conceptual difficulties of a high order.”

As the U.S. Supreme Court  said in Hayes, the “liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo-composition methods.”

And in U.S. v. Hastings (1983), the Eleventh Circuit Court of Appeals interpreted the U.S. Supreme Court ruling in Hayes to mean that “the press generally has no right to information superior to that of the general public.” 

Updating the “lonely pamphleteer” to the “lonely bystander” metaphor, the First Circuit Court of Appeals ruled in Glik (2011): “The First Amendment right to gather news is… not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the [incorporated] press.

“Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses but also may have a salutary effect on the functioning of government more generally,” said the unanimous First Circuit Court of Appeals in Glik v. Cunniffe (2011). Indeed, videos have stimulated widespread debate about how to reform harmful policing practices, especially concerning minority communities. 

“And just the act of recording, regardless of what is recorded, may improve policing,” the Third Circuit Court of Appeals said in Fields v. Philadelphia (2017). The Third Circuit also pointed to the value of recordings to corroborate information. 

“To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts,” the judges said. “Hence to record is to see and hear more accurately. Recordings also facilitate [public] discussion because of the ease in which they can be widely distributed via different forms of media.” 

Police agencies agree.

The Rise of Body and Dashboard Cameras

Law enforcement agencies have adopted technology to record police officers’ activities in an effort to improve public safety, increase evidence quality, reduce civilian complaints, and  reduce departments’ liabilities.

The Center for Digital Government
4,500 dashcams or bodycams in 2013
10,500 dashcams or bodycams in 2018

Apply the First Amendment

Apply what you have learned to the following case of Susan Greene, a journalist with The Colorado Independent. 

Susan Greene (R) handcuffed and detained by Denver police on July 5, 2019 (Screenshot of body-cam footage provided by the city of Denver).

  1. Why does the First Amendment protect journalists and bystanders recording police officers doing their job in public? What First Amendment value does this serve? Of what significance is it that the recordings are being made of public officials—and of police officers in particular?

  2. Over the past few years, how have recordings by bystanders contributed to our understanding of police conduct and misconduct? What effect has it had on political movements and discussion of individual rights and liberties?

  3. These cases involve a right to record police officers doing their official duties in public. What value does recording add to just visual observation of the work of police officers?

  4. Note that we’re discussing recordings of police officers on public property—streets, sidewalks, and parks, venues traditionally open to the public. Do you think that the First Amendment also protects the making of recordings on private property? How is this situation different? What other interests are at stake that pertain specifically to private property and not public property?

First Amendment Issue II

The Right to Share Information

The First Amendment protects the act of recording as a necessary corollary to the right to publish and distribute the recording. Dissemination of video and audio information is clearly protected by the First Amendment.

But what about the action of recording? Is the act of recording protected as well? Courts have had to deal with arguments that only dissemination is protected—not the act of recording itself. Courts recognize that the recording of video and audio is closely intertwined with the eventual dissemination of the information. Use of recording technology enables protected speech to occur, and thus the First Amendment must shield both.

“A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus.”

Justice Antonin Scalia,
McConnell v. FEC (2003).

As the Seventh Circuit Court of Appeals wrote in Alvarez (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. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected. By way of a simple analogy, banning photography or note taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording. The court concluded: “Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.”

Apply the First Amendment

First Amendment Issue III

Time, Place, Manner Restrictions—
And Other Limitations

Although the courts have recognized a First Amendment right to record the work of police officers in public, that right is not absolute. It is important to understand that recording in public is subject to “time, place, and manner” restrictions. 

These are restrictions imposed on expression that are designed to maintain public safety and other valid concerns. Courts use a three-part test to assess whether they are consistent with the First Amendment. Restrictions must be content-neutral—meaning that they cannot be aimed at speech based on the subject matter. They must be narrowly tailored to serve a significant government interest and leave open alternative channels of communication. For example, a local government could prohibit a protest taking place at 1 a.m. in a residential neighborhood in order to preserve peace and quiet during a time when people seek rest.

As applied to the recording of police officers, the Seventh Circuit Court of Appeals said in ACLU v. Alvarez (2012): “It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. 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.” 

What kinds of “time, place, and manner” restrictions could a court find reasonable? It would depend on the situation. Police have wide discretion to take reasonable steps to protect the public and their own safety, such as keeping people a reasonable distance (e.g., 20 to 30 feet) from an incident, and limiting traffic around the incident. A journalist or bystander who crossed police barriers set up to protect public safety,  or at a crime scene in order to get a better angle from which to record, might reasonably be asked to move, as would someone who got in the way of police officers and vehicles moving in and out of the area. Police dealing with an active shooter situation would obviously have even broader discretion.

However, as the First Circuit in Glik held, “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”

To further illustrate this point, in King v. Ambs, the Sixth Circuit Court of Appeals ruled that free speech rights are not protected when a bystander is interfering with an arrest by instructing a suspect not to cooperate with police.

Although the courts have recognized a First Amendment right to record the work of police officers in public, that right is not absolute. It is important to understand that recording in public is subject to “time, place, and manner” restrictions. 

These are restrictions imposed on expression that are designed to maintain public safety and other valid concerns. Courts use a three-part test to assess whether they are consistent with the First Amendment. Restrictions must be content-neutral—meaning that they cannot be aimed at speech based on the subject matter. They must be narrowly tailored to serve a significant government interest and leave open alternative channels of communication. For example, a local government could prohibit a protest taking place at 1 a.m. in a residential neighborhood in order to preserve peace and quiet during a time when people seek rest.

As applied to the recording of police officers, the Seventh Circuit Court of Appeals said in ACLU v. Alvarez (2012): “It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations. 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.” 

What kinds of “time, place, and manner” restrictions could a court find reasonable? It would depend on the situation. Police have wide discretion to take reasonable steps to protect the public and their own safety, such as keeping people a reasonable distance (e.g., 20 to 30 feet) from an incident, and limiting traffic around the incident. A journalist or bystander who crossed police barriers set up to protect public safety,  or at a crime scene in order to get a better angle from which to record, might reasonably be asked to move, as would someone who got in the way of police officers and vehicles moving in and out of the area. Police dealing with an active shooter situation would obviously have even broader discretion.

However, as the First Circuit in Glik held, “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.”

To further illustrate this point, in King v. Ambs, the Sixth Circuit Court of Appeals ruled that free speech rights are not protected when a bystander is interfering with an arrest by instructing a suspect not to cooperate with police.

It is also essential to explain that the court decisions surveyed in this case study related to the recording of police officers performing their duties in public—on streets, on sidewalks, and in public parks. Journalists and bystanders do not have First Amendment protection to follow police officers when they go onto private property. They can record from a street or sidewalk, but entering private property without permission of the person who owns or occupies the property may be trespassing. Also, police cannot grant valid permission to reporters to follow them onto private property. To summarize the spirit of this legal principle, you cannot break one law in pursuit of exercising your First Amendment rights.

What about wiretapping and eavesdropping statutes—do not newsgatherers break those laws when exercising their First Amendment rights? To answer this question, we turn to the federal case of ACLU of Illinois v. Alvarez (2012). It was about whether an Illinois eavesdropping statute that prohibited nonconsensual audio recordings applied to secret recordings of police working in public.

The Seventh Circuit concluded that, yes, the statute protects the privacy of conversations; however, “that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events.”

Why? Because the police, by the nature of their office, are public servants and the recording is done on public property (or from one’s own private property, as did George Holliday when recording Rodney King’s beating). Recording police in the line of duty does not, the court held, violate privacy laws meant for private citizens. In issuing a preliminary injunction against the enforcement in Illinois, the court said the application of an eavesdropping statute to the recording of police activity “likely violates the First Amendment’s free-speech and free-press guarantees.”

Just as a person’s rights are not absolute, neither is the government’s power. Public officials must uphold every aspect of the law, giving special attention to the ways the U.S. Constitution limits the abilities of state actors. Consider the intersection of the First Amendment rights discussed in this case study and the Fourth Amendment right to be free from unreasonable searches and seizures.

It is critical to understand that search and seizure laws also apply to the question of recording police. In the landmark case Riley v. California (2014), the U.S. Supreme Court, said the Fourth Amendment prohibits police from seizing a person’s recording device or later searching through its contents. The only way to seize the phone is through an arrest and the only way to access its contents is to acquire a warrant. In writing for a unanimous Court, Chief Justice Roberts said, 

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Until now, this case study has focused on the legal parameters of people’s civil liberties as protected by the U.S. Constitution. Do these liberties have any benefit to agents of the state? Are there any benefits in recording police activity for the police being recorded? Is it in the officer’s best interest to join the effort to record and archive footage of arrests? Courts and law enforcement agencies have answered in the affirmative.

Apply the First Amendment

Additional Activities

Classroom Debate

Step 1. Introduce the following case

In 1979, the State Supreme Court of New Jersey heard New Jersey v. Lashinsky, a case involving a press photographer who was arrested for disorderly conduct after refusing to leave the scene of an accident. Harvey I. Lashinsky was driving down a highway when he noticed a broken guardrail and a car that swerved off the road and landed in an embankment. Lashinsky, a photographer for the New Jersey newspaper. The Star-Ledger, believed the accident was newsworth, and proceeded towards the scene of the accident. By the time Trooper Eric Herkloz arrived, a crowd of 40-50 people had gathered at the crash site. In the car, a girl was “pinned inside the vehicle next to the corpse of her mother, who had been decapitated.” Except for two emergency responders, Herkloz asked everyone to leave. The photographer said it was his job to take photos and refused to move farther than a few feet. The police officer ended up arresting Lashinsky for disorderly conduct. (Read the full case here.)

Step 2. Pose Questions

Was the officer’s arrest of the photographer warranted? Or, did the officer’s actions violate the photographer’s First Amendment rights?

Step 3. Break into Small Groups

Break up your students into three groups: the first to defend the photographer, the second to defend the police officer, and the third to serve as judge and deliver the final opinion. Allow students to prepare ahead of time, so that they can adequately build their case. Through debate, students will learn to see multiple sides of a controversy and weigh conflicting values.

Written Assignment

Many of the discussion questions could easily be used as a starting point for a longer essay. Have students use this document, the resources listed below, and articles on our website to find examples to demonstrate their content knowledge. Almost all of our stories include links to court documents and other news articles so the students will have ample evidence to work with. They should also be encouraged to use major court cases cited in this guide to help prove their arguments.

Essay Prompt

Why does the First Amendment protect journalists and bystanders recording police officers doing their job in public? What First Amendment value does this serve? Of what significance is it that the recordings are being made of public officials—and of police officers in particular?

Multimedia

  1. Watch: “‘Act like a lady’: Denver police handcuff journalist (body-cam footage 1 of 2)) (3:05) and “Denver police handcuff journalist (body-cam footage 2 of 2)” (1:17), Colorado Independent, Aug. 28, 2018. Watch: “Two Denver police officers fined two days each for detaining reporter.” FOX31 Denver, Feb. 5, 2019 (1:33).
  2. Watch: Laura Maldonao’s Facebook video of officer Spencer Muniz-Bottomley arresting Dejuan Hall in Vallejo, March 10, 2017. Read: J. Glidden, “City gives $75,000 to man after being tackled by officer.” Vallejo Times-Herald, June 25, 2019. 
  3. Watch: “Black Lives Upended by Policing: The Raw Videos Sparking Outrage,” New York Times, updated April 19, 2018.
  4. Watch: “Do Citizens Have a Right to Film Police Officers?” The Federalist Society, December 22, 2017.
  5. Watch: “What you need to know about filming the police.” The Washington Post, June 9, 2015.
  6. Watch: “Video footage of arrest by Los Angeles police officers.” FBI Records: The Vault (9:13), March 3, 1991.

 

Related U.S. Supreme Court Decisions

  1. Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (Affirmed in an 8–1 decision, a person cannot claim a “retaliatory arrest” claim under the First Amendment if the police officer can demonstrate probable cause for an arrest).
  2. McConnell v. FEC, 540 U.S. 93, 251-52 (2003) (Scalia, J., concurring in part, dissenting in part). Majority opinion was overruled by Citizens United v. FEC, 130 S. Ct. 876 (2010), yet, Justice Scalia’s used his partial dissent in McConnell as the majority opinion in Citizens United (“Government could repress speech by silencing certain voices at any of the various points in the speech process.” (citing McConnell, 540 U.S. at 251 (majority opinion, Scalia, J.))
  3. Police Department of Chicago v. Mosley, 408 U.S. 92 (1972) (“the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content).
  4. Grayned v. City of Rockford, 408 U.S. 104, 116 (1972), “Although a silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time”).

 

Federal Appeals Court Decisions

  1. Askins v. U.S. Department of Homeland Security, No. 16-55719 (9th Cir. 2018) (First Amendment protects the photographing of patrol officers at ports of entry).
  2. Fields v. Philadelphia, 862 F.3d 353 (8th Cir. 2017) (“First Amendment protects the act of photographing, filming, or recording police conducting official duties in public”).
  3. Akins v. Knight, 863 F.3d 1084, 1088 (8th Cir. 2017) has been mistakenly identified in the press as ruling against citizens’ First Amendment rights to film police in public. Akins was primarily ruled on procedural grounds (seeking the judge’s recusal). It did not analyze the merits of the constitutional claims, therefore cannot be categorized as either a pro- or anti-recording police case.
  4. Turner v. Driver, 848 F.3d 678 (5th Cir. 2017) (“a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions”).
  5. Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) (under the First Amendment, “private individuals possess a constitutionally protected right to videotape police carrying out their duties”).
  6. ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (the Illinois’ eavesdropping statute did not apply to the recording of police activities in public).
  7. Glik v. Cunniffe, 655 F. 3d 1 (1st Cir. 2011) (there is “a constitutionally protected right to videotape police carrying out their duties in public” and that the right was “fundamental”).
  8. King v. Ambs, 519 F.3d 607 (6th Cir. 2008) (free speech rights are not protected when a bystander is interfering with an arrest by instructing a suspect not to cooperate with police).
  9. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (affirmed “a First Amendment right, subject to reasonable time, place, and manner restrictions, to photograph or videotape police conduct”).
  10. Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) (“First Amendment right to film matters of public interest,” as when Jerry Fordyce filmed police activity during a public protest).

 

In the News

  1.  Julie Tate, Jennifer Jenkins and Steven Rich, “Fatal Force: 829 people have been shot and killed by police in 2019,” Washington Post, updated Nov. 28, 2019 at 2:14 pm.
  2. Matt Ford, “A Major Victory for the Right to Record Police.” The Atlantic, July 7, 2017.
  3. Al Baker, J. David Goodman and Benjamin Mueller, “Beyond the Chokehold: The Path to Eric Garner’s Death.” New York Times, June 13, 2015.

Citizen Journalists are untrained reporters who collect and share information, often motivated by a civic duty to report on something of public concern.

Corollary Rights are secondary or collateral rights that were abridged as a result of a primary consequence. Example: a police officer arrests a bystander and thereby prevents the filming and sharing of the observed police activity. In this scenario, the officer would have primarily violated the bystander’s rights to gather information, as well as the corollary right for the bystander to publish and disseminate the footage.

The First Amendment to the U.S. Constitution enumerates five freedoms: religion, speech, press, assembly, and petition. Ratified by the states in 1791, the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Public Forum, Limited Forum, Nonpublic Forum: The U.S. Supreme Court identified three fora: a public forum is a government owned or designated place where the general public can access and express constitutionally protected speech (e.g., sidewalks, public parks); a limited forum is a public space with restricted activities (e.g., public schools); and a nonpublic forum is government regulated place not open for public expression (e.g., airport terminal, polling places, military base). See Burson v. Freeman, 504 U.S. 191 (1992); Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988); Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Grayned v. City of Rockford, 408 U.S. 104 (1972).

The “Time, Place, and Manner” restriction is a judicial test used by the courts to require the government to ensure that any burden on a person’s Free Speech rights is content neutral. Any such regulation must be limited to only, for example, the time of day of a protest, to a public place such as a sidewalk, or putting a reasonable distance (e.g., 30 feet) between a bystander recording police activity to prevent obstruction of an arrest. See Ward v. Rock Against Racism, 491 U.S. 781 (1989).

The materials produced by 1791 Delegates are intended for educational purposes only and do not constitute legal advice. Please consult an attorney in your state if you need legal representation.

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