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Thursday, February 25, 2016

Federal Court Rules There Is No Right to Record Police

Unless it is accompanied by "challenge or criticism"

In recent years, lower federal courts have generally held that the First Amendment protects a right to videorecord (and photograph) in public places, especially when one is recording public servants such as the police.

Because recording events that you observe in public places is important to be able to speak effectively about what you observe, courts held, the First Amendment protects such recording. (By analogy, spending money on speech is likewise protected by the First Amendment, because such spending is important to be able to speak effectively; likewise, associating with others for expressive purposes is protected by the First Amendment, because such association is important to be able to speak effectively.)

Some restrictions on such recording may be constitutional, but simply prohibiting the recording because the person is recording the police can’t be constitutional. This is the view of all the precedential federal appellate decisions that have considered the issue. (The Supreme Court hasn’t expressly considered this question.)

But Friday’s federal trial court decision in Fields v. City of Philadelphia takes a different, narrower approach: There is no constitutional right to videorecord police, the court says, when the act of recording is unaccompanied by “challenge or criticism” of the police conduct. (The court doesn’t decide whether there would be such a right if the challenge or criticism were present.)

Therefore, the court held, simply “photograph[ing] approximately twenty police officers standing outside a home hosting a party” and “carr[ying] a camera” to a public protest to videotape “interaction between police and civilians during civil disobedience or protests” wasn’t protected by the First Amendment.

I don’t think that’s right, though. Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it’s not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.

Your being able to spend money to express your views is protected even when you don’t say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren’t actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that takes place later). The same should be true of your recording events in public places.

In any event, the trial court expressly noted its disagreement with the US Courts of Appeals for the 1st Circuit and 9th Circuit decisions (and I think the result is inconsistent with other circuit decisions, too). I’m told there’ll be an appeal of the decision, and I expect the 3rd Circuit will reverse.

Thanks to Benjamin Picker and Colin Starger for the pointer.

This article first appeared at the Volokh Conspiracy.

  • Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.