Is There a Right to Record Police?
By: Logan Manthey
Doing a Google search for “police brutality” or “corrupt cops” will pull up thousands of video hits these days. Many people, when asked would say that one has a right to videotape police officers in public. However, after watching a few of these videos, the reactions of the police officers would give one a different impression. Daily, there are stories that detail how police have used one law or another to detain, arrest, and confiscate video of police activity made by citizens. So what exactly can one do if one wishes to videotape police officers performing their duties in public? The answer to that question is a little more complicated than one might think. First of all, the right has not been clearly addressed by mot circuits and the Supreme Court. And when it has been addressed by the few circuit courts that have addressed it, they have come to conflicting decisions. However, what is certain is that there is a general Frist Amendment right to record matters of public interest in a public forum. However, it is not always an absolute right and is subject to restrictions as the Supreme Court held in Ward v. Rock Against Racism. Because it is not absolute, there are restrictions, and so far, there has been no clear delineation of what those rights are.
Typically, in public forums, parks, First Amendment protection is at its strongest. The right of the government to limit speech in these areas is circumscribed, and any government restriction of speech has to be able to pass a high level of scrutiny in order for it to be constitutional. Public areas and parks, especially, are the “apotheosis of public forum.” These places have had a long tradition of being centers of public discussion in America. When there is a rally or protest, they are typically seen in parks or city streets, not someone’s private property. The right to record is essential so that the public knows what is going on. Going back to the Revolution time period, people recording the events and goings on of the British is what sparked the Revolution. The right to record matters of public interest. When citizens exercise their First Amendment right to gather and disseminate news in a way that promotes public discussion and scrutiny of gov’t officials, they advance a “a major purpose of the First Amendment interest.” So the question is, how far does this right extend in protecting the right to record matters of public interest and where?
A recent line of lower court decisions have decided on this issue and both have gone separate ways. The two most recent and seminal cases are the First and Third Circuits, Glik v. Cunniffe and Kelly v. Borough of Carlisle respectively, pertaining to this decision up to this point. The First Circuit in Glik found that there was a right to record matters of public interest, and should one be arrested for filming police officers in a “peaceful manner,” that right is violated because one has a right to record police officers performing their duty in a public place as it is a matter of public interest. However, the Supreme Court case, Ward v. Rock Against Racism, that stated that the right to record is not absolute is subject to reasonable time, place, and manner restrictions. The court stated in certain situations the right may be curtailed, as it is not fully protected, if it is a dangerous situation or other limiting factors, like interference with an on-going investigation, may be present. The court emphasized that officers in certain situations need to have complete control, and videotaping might compromise that control. They cited to the Supreme Court case of Pennsylvania v. Mimms where the Supreme Court declared that during a traffic stop, police officers need complete control
So the two most recent decisions leave us wondering what the limits of this law are. Really, it seems that they could be complimentary to each other. The rule created from this case being that one has a right to record matters of public interest in a public forum so long as the safety of officers or bystanders is not at risk, and the recording does not interfere with an ongoing police investigation or other activity. However, judging by the most recent moot court competition assignment, the rule to be made is still up for debate.
So where does this circuit split leave us today? Currently, one can find stories of people being arrested all over the country for filming police officers daily during protests or traffic stops. Usually, these supposed criminals are violating wiretapping-like laws. The Supreme Court will not be hearing a case pertaining to this anytime soon. It recently denied certiorari to Anita Alvarez v. ACLU of Illinois which left in place the lower court’s holding that the arrest for “eavesdropping” was unconstitutional. However, to speculate a bit, if the Supreme Court were to hear a case today, I believe that the Supreme Court will find that one has a right to record matters of public interest, including police officers, but with some sort of qualifying language or limitations of course.
If the fact that the Supreme Court denied writ for the above mentioned case wasn’t bad enough, police officers enjoy qualified immunity from being sued in court for their violations of these rights unless one can show that there is a right that was violated and at the time of the violation that right was “clearly established.” However, this area of law is so new that a few judges have found that the right to matters of public interest and to record police is not “clearly established.” So even if one were to show that there is a right and it was violated, depending on the judge, the case may fail even before it gets started because the officer would not have been put “on notice” of the state of the law regarding the right to record matters of public interest. But that trend could be breaking, the most recent case, Glik, found that there is a right to record police in public, as it is a matter of public interest, and that an officer is on notice that his actions may violate one’s First Amendment right to record. Also, the Justice Department filed a statement with a federal court in Maryland stating that there is a right to record police in public and that the Fourth and Fourteenth Amendments protect one’s right from unlawful seizure of his or her cellphone should it be demanded of them if they film officers in public. In fact, it may be that Congress can pass new legislation that protects this right because of the power that the Fourteenth Amendment gives it in passing legislation that protects against infringement of rights.
So, be careful out there when recording police. Do it from a distance and do not interfere with their investigation. If they demand that you stop, know that you are in your rights to continue to film, and if they demand your phone without a warrant, also know that you are in your rights to deny them that search and seizure. Who knows? Maybe you’re case will become the test case that law students will read about when they discuss this are of the law.
 See e.g., Josh Gerstein, U.S. Weighs In Favor of Right to Record Police, POLITICO, http://www.politico.com/blogs/under-the-radar/2013/03/us-weighs-in-favor-of-right-to-record-police-158828.html; Radley Balko, Good News and Bad News on Recording the Police, WASHINGTON POST, http://www.washingtonpost.com/news/the-watch/wp/2014/02/18/good-news-and-bad-news-on-recording-the-police/?tid=pm_lifestyle_pop.; Morgan Leigh Manning, Yes, You Have the Right to Record Police, POPULAR MECHANICS, http://www.popularmechanics.com/technology/gadgets/news/yes-you-have-the-right-to-record-the-police-analysis-15558522.
 See Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) .
 491 U.S. 781.
 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n 460 U.S. 37, 45.(1983).
 Glik, 655 F.3d at 85(1st Cir. 2011).
 Mills v. AL. 384 U.S. 214, 219 (1966).
 See Glik and Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010).
 Glik, 655 F.3d at 86.
 Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
 Kelly, 622 F.3d at 262.
 Campbell Moot Court Packet, 2014.
 See generally Glik v. Cunniffe, 655 F.3d 78.
 Josh Gerstein, Supreme Court Won’t Hear Police Recording Case, Politico, http://www.politico.com/blogs/under-the-radar/2012/11/supreme-court-wont-hear-police-recording-case-150290.html
 See Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).
 See Glik, 655 F.3d at 85.
 Gerstein, supra note 1.
 Morgan Leigh Manning, supra note 1.