The Public's Right to Record Police Officers' Official Activities

TL;DR: Members of the public have a First Amendment right to record police officers performing their official duties in public. Courts have consistently upheld this right, recognizing that civilian recordings promote government transparency and accountability. However, the right is not absolute. Police may impose reasonable restrictions, particularly when recording interferes with police operations or officer safety. The key distinction is that people have the right to record police, but not the right to interfere with police while recording.

The Illinois SAFE-T Act mandated the use of body-worn cameras by police officers in most circumstances, notably during their interactions with members of the public. Body cameras are common now, several years into the Act’s existence. The SAFE-T Act does not regulate members of the public or their ability to reciprocally record police officers with recording devices of their own. Most police officers by now have likely received training advising them that members of the public have a constitutional right to record them in the exercise of their official duties, with limits. This article briefly explores the origin and extent of that right.

The advent and increased distribution of printed images in the mid-1900s likely paved the way for a United States Supreme Court decision in 1957 beginning to define the public’s right to possess images. In Roth v. United States, 354 U.S. 476 (1957), the Court ruled that possession and distribution of printed images—in that case, pornographic photos—was protected by the First Amendment of the United States Constitution (though—famously—not without limits). The Court in Roth relied in part on a letter from the Continental Congress drafted in 1774, which said, in part, that “freedom of the press” was important not just for its advancement of truth, but for its “sentiments on the advancement of government.” That part of the letter is important for later analysis dealing with recording of police officers.

Thirty-four years later, in 1991, cameras, particularly video cameras, were more sophisticated, affordable, and capable than ever before, and there were more of them, though not nearly as many as today. It became clear that the video camera was going to be a tool used by members of the public, not just the press, when George Holliday used his personal camera to record a video showing Los Angeles Police Department officers beating Rodney King. Holliday submitted the now-famous video to a local news channel, and the incident became a topic of history.

Camera technology and the ownership of smartphones since then have resulted in “civilian recording of police officers [being] ubiquitous.” Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017); citing Jocelyn Simonson, Copwatching, 104 Cal. L. Rev. 391 (2016). The frequent recording of police officers conducting their official duties has resulted in numerous court cases generally arising in the context of civil suits filed against municipalities and police officers in their personal capacity alleging that officers refused to allow members of the public to record them while performing their jobs.

Fields is one such case, though by no means the only one. The court in Fields collected cases reflecting the body of judicial thought on the subject. The court noted that “[e]very Circuit Court of Appeals to address this issue . . . has held that there is a First Amendment right to record police activity in public.”

Fields actually involved two cases. In one, the plaintiff (“Geraci”) attempted to record police officers making an arrest at a protest. An officer pinned her against a pillar for one to three minutes, preventing her from observing or recording the arrest. In the other, the plaintiff (“Fields”) took a photograph of police officers breaking up a house party. An officer ordered him to leave, and Fields refused. The officer arrested him, confiscated his phone, then searched its contents without a warrant. Both Geraci and Fields filed civil suits alleging that the officers violated their First Amendment right to record public police activity (and also their Fourth Amendment right to be free from unreasonable search and seizure).

The District Court, where the cases originated, dismissed both complaints, holding that preventing people from creating images was different from banning them from possessing images, and so neither plaintiff stated a meritorious claim. The Court of Appeals, on review, disagreed and reversed the District Court’s order. It held that “[t]here is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them.” The lower court had ruled that neither Geraci’s nor Fields’ actions were protected because neither had any bigger plan for using the images (Fields testified he just wanted a picture of “a cool scene”). The court relied on earlier cases and amicus briefs that reviewed earlier decisions, and held that “[r]estricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording”; “[b]oth precedent and first principles demonstrate that the First Amendment protects the process of capturing inputs that may yield expression, not just the final act of expression itself”; “[t]he threat of arrest remains a potent deterrent to spontaneous photographers who have no deep commitment to capturing any particular image.”

In the context of observing police officers in the performance of their duties, the court wrote that “[t]he First Amendment protects the public’s right of access to information about their officials’ public activities . . . it goes beyond 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.” The court wrote that access to public police activity is “particularly important” because it is at the “highest rung of the hierarchy of First Amendment values and is entitled to special protection.” The court noted that the presence of corroborating images could help replace “subjective impressions” with “objective facts.” Bringing what Holliday’s 1991 video foretold into the modern era, the court also noted that the use of modern “bystander” recordings “has become a common component of news programming . . . Today, the first source of information from the scene of a newsworthy event is frequently an ordinary citizen with a smartphone.”

The court wrote about the limitations on the public’s right to record police officers. “We do not say that all recording is protected or desirable. The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions . . . but in public places these restrictions are constrained . . . If a person’s recording interferes with police activity, that activity might not be protected.” This mirrors statements other courts have made limiting the right to recording police officers in public areas while performing official duties and not interfering with them in the performance of their jobs. The ACLU, in its publication Recording and Documenting Police and Federal Agents, adds that officers may order people to move a reasonable distance away, private property owners may limit the actions of people on their property, and that recording officers is not a shield from civil disobedience or the violation of other laws.

The public’s ability to record police officers while performing their official duties is well established; however, that right is not absolute. As members of the public should know the limits of their rights, officers should be aware of the particular place the First Amendment holds in the view of the judiciary.

Cases cited in the article