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Litigation: Don’t tape me, bro!

Courts acknowledge First Amendment right to videotape police officers despite opposition from law enforcement

With a cellphone in every pocket and a video camera in every cellphone, it is easier than ever for the public to obtain photographic proof of poor (or at least ill-advised) treatment by police, political candidates and even judges. Just ask the guy from the viral “Don’t Tase me, bro” video, the campaign staffer George Allen infamously nicknamed with a racial slur or the Texas teenager who secretly taped her judge father during an altercation.

Efforts by some officials to plug the dam against such embarrassing, news-cycle dominating content by invoking anti-wiretapping and other laws have unleashed a floodgate of First Amendment litigation. As a result, courts across the country have considered the question of whether the First Amendment guarantees the right to record public officials while they are on the job. The majority rule so far favors free speech, but it is anybody’s guess when local law enforcement will get the message.

The trend among federal appellate courts is to find First Amendment protections for tape recording officials discharging their duties. In Glik v. Cunniffe, the 1st Circuit held that free speech rights “unambiguously” protect citizens who videotape police in public acting in their official capacities. The1st Circuit joined 11th and 9th Circuits, which had already recognized a “First Amendment right to film matters of public interest.” Similarly, in Oregon v. Neff, the Oregon Court of Appeals read its wiretapping law narrowly to permit a hidden audio recording of a police officer.

In early May, the 7th Circuit followed suit, but the decision was a close call. In ACLU v. Alvarez, the court held that the Illinois Eavesdropping Act, which makes it a crime to audio record on-duty police officers without their permission, likely violated the First Amendment, and ordered the district court to issue a preliminary injunction against enforcing the Act. Judge Richard Posner dissented and stated during oral argument that videotaping police opened the door to “snooping around by reporters and bloggers,” which was “a bad thing.” The case has now been stayed pending a request for review by the Supreme Court.

The Obama administration has also gotten involved. In Sharp v. Baltimore City Police Dep’t, Christopher Sharp sued for violations of his constitutional rights after he got into hot water with the Baltimore City Police for using his phone to record officers arresting a friend at a horse race. Sharp’s phone was confiscated and returned to him with the video of his friend—and other content—deleted and his phone reset so that it only permitted emergency calls.

The police did not dispute that Sharp’s First Amendment rights were violated, but argued the case was moot because the department was now training police not to inhibit recordings by bystanders. The U.S. Attorneys’ Office disagreed, and filed a statement of interest arguing that the First Amendment right to record police was so clear and of such paramount importance that the department should be required to train officers on the First Amendment, routinely test their training and track allegations that officers breached First Amendment rights. On Feb. 17, the court ordered that Sharp’s First Amendment rights had been violated. The federal government later sent a letter to the Baltimore police department detailing exactly what the U.S. would consider a constitutionally adequate policy regarding individuals’ right to record police activity. The suit, and any resolution of the police policy on permissible recordings, is still pending.  

Spreading the word about these legal battles and their (so far) uniform protection for the First Amendment right to videotape police officers in public has significant consequences. In June, two men filed suit in Chicago alleging that in August 2011, law enforcement battered, strip-searched and falsely accused them of crimes because they used their cellphones to record an officer who caused a collision by driving the wrong way on a street. Since Alvarez, the media reported mostly favorable treatment by the Chicago police when citizens and journalists recorded officers on duty during the May 2012 NATO summit. Hopefully this is evidence of the Chicago police department turning over a new leaf. Whether law enforcement elsewhere will be inspired by their example remains to be seen, but if the events leading to the disputes described in this column are any indication, undoubtedly some citizens’ rights will be unconstitutionally curtailed along the way. 

Contributing Author

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Dori Ann Hanswirth

Dori Ann Hanswirth is a partner with Hogan Lovells in the New York office. She handles a wide range of civil litigation and focuses on...

Additional Contributors: Theresa House

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