Can you record the police?
Under the Constitution, when can the police prevent the use of cameras in public? While the Supreme Court has not yet ruled on the issue, federal appeals courts have ruled that recording law enforcement is protected under the First Amendment. An important caveat that Professor Rachel Harmon explains, however, is that the government can impose restrictions on the time, place, and manner of this protected speech. There is a distinction between recording and interfering with police activities, which is an area that courts are navigating to determine what types of restrictions are reasonable. Harmon delves into the subject of when interference may lead to a limitation on otherwise protected speech and explains under what circumstances police officers can stop bystanders from recording a crime scene or a detainee from recording during an arrest or traffic stop.
Can you record the police? Brief Transcript
Interview with Police Law Expert on Recording the Police – Prof. Rachel Harmon of UVA Law School
Joel Cohen: Professor, one of the ways that you know these police abuses have come to light is through the videotaping of police. Why don't we talk about the laws surrounding that? Threshold question, do we have a constitutional right to video the police?
Rachel Harmon: Almost every court that has addressed this question has said that we do. The Supreme Court has not heard any of these cases yet, but every circuit court and most of the state supreme courts that have addressed the question have said yes, there is a First Amendment right to video record the police activities when they're conducted in public.
Police Recording v. Police Interference
JC: There's some difference between recording and interfering. How would you draw that line?
Rachel Harmon: Like other First Amendment activities, recording the police is subject to reasonable time, place, and manner restrictions, and courts are now struggling. So for a decade there was this litigation about whether video recording was a First Amendment right. Now the cases are turning to the question of well what kind of restrictions are reasonable time, place, and manner restrictions on video recording the police. So just like we talked about interfering with the police or you know a bystander getting in the face of the police when they're conducting an arrest, if a citizen with a video camera walks right up to an officer who's conducting an arrest, is within a few feet of that officer, is that now a protected First Amendment activity, or is that something that police officers can order them back or conduct an arrest if they fail to follow that order? And we still are working on that in the courts. And the courts haven't yet decided what constitutes interfering with the police such that it would be, you can restrict that First Amendment activity.
Can police make bystanders turn off their cameras?
JC: Why don't we work our way in from bystanders to people actually involved. Starting with the bystanders, I mean how many videos have you seen where the officer says, “Excuse me, sir. Turn off your camera.” Or, “Excuse me, sir. Put away your camera.” What is that?
RH: There are a lot of those. I mean this has been a right that's developing over time, but the technology has outstripped the law, and the law has outstripped the legal training that police officers have received. And so you will often see police resisting, less so now, but resisting being videotaped by either ordering people to stand back or by telling them to put away their cameras. And there are times when you know we might be concerned about videotaping activities, even those activities in public. So, for example, if you can imagine a homicide scene where the victim's family has not yet been notified, should we allow private individuals to record a picture of the body and post it to Instagram before the family is notified? That's a tough question. The First Amendment would protect video recording. That's not interfering with, necessarily interfering with the carrying out of the law enforcement duties, but we might consider, some courts might consider it a reasonable time, place, and manner restriction to forbid that activity. I'm not suggesting that that's the vast majority of the cases in which police are stopping people from recording the police, but I do want to say that it is, it can be at least at times a complicated caution. Overwhelmingly though, people should be permitted to record police activities in public. And you know increasingly police recognize this but for a long time they didn't, and you saw this resistance.
Recording While Under Arrest
JC: We've talked about videotaping the police who are engaged in an arrest of someone else. What about when you're at the center? When you're the star of this horrific show, do you have the right then to say, “Officer, I want to turn on my recording device,” or, “Officer, I'd like to, I'd like to videotape this as I'm being arrested to preserve my rights and to preserve what is actually transpiring.”?
RH: There are two different questions there. One is what you have a First Amendment right to do and the other is really you might think of as a Fourth Amendment question or a question of state law and arrests, which is what does the, what may police officers prohibit you from doing physically during the course of a stop or an arrest? And so a police officer stops you when you're in your car and says put your hands on the steering wheel, and that's for officer safety, right? So they can see your hands, and you couldn't reach for a weapon that the officer can't see. And courts consider that a reasonable exercise of police authority to protect the safety of an officer. When if you think of that as a reasonable command, then somebody who says no, I'm just reaching to start my Iphone is no different than someone who says I'm just reaching for something else. Either way, the courts might be concerned about disallowing police officers from giving commands especially in the context of officer safety. Now there are some real, there are some empirical questions about whether officers are really at risk as much as they sometimes believe themselves to be. But assuming that you believe that police officers are at risk in these contexts, and courts certainly do, then they're likely not to treat the First Amendment right as overcoming the police authority to issue those kinds of commands.
JC: What if the camera's already on? What if you know before the police officer arrived, you put your driver's license on the dashboard, and you turned on your phone, and then you put your hand on the steering wheel, and you politely let the officer know my driver's license is on the steering wheel and I'm recording the conversation? Can they then tell you to stop?
RH: Yeah, so then I think it's purely a First Amendment question, and the answer I would assume, and again the case law is sort of thin on this for a variety of reasons, but the answer is it should be no. It is not a reasonable time, place, or manner restriction to prohibit somebody from recording their encounter with the police during that encounter if doing so does not interfere with the arrest or create a risk to the officer.