You witness a police encounter and pull out your phone to film it. Is there a right to record the police? Does the First Amendment protect a right to record? Does that apply to recording law enforcement? Prof. Simonson explains with examples of how the courts decided on this controversial issue...
Jocelyn Simonson is a professor of law at Brooklyn Law School. She teaches criminal law and evidence. Prof. Simonson writes about ways in which the public participates in criminal justice processes and how that participation has the potential to lead to changes in the justice system.
UPDATE: subsequent to the release of this video, The Third Circuit Court of Appeals overturned the Philadelphia federal district court's decision that had interpreted no First Amendment right to record. The U.S. Court of Appeals for the Third Circuit in Fields v Philadelphia rejected that argument and joined the number of appellate courts to find that the First Amendment does protect this right.
I’ve taken out my phone, I’ve recorded a police officer. Can that police officer take my phone away from me? Hello, my name is Jocelyn Simonson. I’m a professor at Brooklyn Law School and I’m here today to talk about the right to record a police officer in public, or, more specifically, is there a First Amendment right to record police officers in public? And the answer to that is maybe. The general sense is that the answer to that is yes, but it’s actually more complicated than that. The Supreme Court has never said there is a First Amendment right to record the police. What they have said is, there is a First Amendment right to curse at police officers, to be loud, to be disrespectful, up to a point that it interferes with public safety. What they have never said is that that right extends to taking out a phone, pressing record, saving that recording. That said, most federal courts around the country to have considered the issue have said either yes, there is certainly a right to record, or there is probably a right to record but it is not yet clearly established. So we have thirteen courts of appeals around the country, and four of them, only four, have said there is definitely a First Amendment right to record the police. And then in every other circuit court around the country it’s actually a question that’s in flux. And as recently as the spring in 2016, a federal court in Philadelphia said, actually, no, there is no First Amendment right to record the police. A number of people have been arrested for recording a police officer in states where there are laws that say you cannot surreptitiously record somebody, and that’s where the First Amendment comes in. If you have a First Amendment right to record the police, then that wiretapping law does not apply to public officials. And in fact, what you find is most wiretapping laws have an exception for public officials in public. If you say live in say Boston, which is a city in the First Circuit Court of Appeals where the court has said very clearly there is a First Amendment right to record the police, then absolutely you can take out your phone, you can press record, and it would be unconstitutional for a police officer to tell you to stop recording, to ask you to leave the scene, to confiscate your phone for the purpose of looking at it, or to delete your recording, unless you were doing something else besides recording. You jumped on a police officer, you put your body between a police officer and someone getting arrested, something in addition. The phone on its own cannot be what causes a police officer to interact with you, tell you to go away, or arrest you. Unfortunately, even in places where that is the law or where there are rules that local police departments have saying that they can’t do that, that’s not always how things turn out. You could imagine the most well-meaning police officer in the world, it’s not just that it would be annoying to have a phone pointing at you, but if you are in a heated situation it might actually make things more heated. And so for that reason, what we are seeing is that all across the country no matter what the state of law is, police officers are confiscating phones, arresting people for disorderly conduct, arresting people for not obeying an order to back up or to put away their phone. And so that is why it is going to be really important to see not just what circuit courts say but how the right is interpreted over time, because we’re already seeing dozens of cases filed in every jurisdiction every year, and it’s going to get greater and greater and greater. I’m Jocelyn Simonson from Brooklyn Law School, and thanks for watching TalksOnLaw.