We have all seen the videos on YouTube – a seemingly law abiding citizen with a camera is confronted by a police officer and told to turn off the camera. Typically, that person does not, and the confrontation escalates frighteningly fast. These encounters conjure an obvious, yet largely illusive question: "Is it legal to film or photograph the police?"
Like most things in life, there is some conflicting information on this, and no definitive answer to every situation. However, as a general rule, in public, you do have a right to photograph and film the police.
What has caused all the confusion over the years? It is difficult to say, but likely the availability of high quality consumer cameras, as well as the integration of video capability on cellular phones, and exponential growth of the Internet have contributed to both citizens being unaware of and police unwittingly violating the First Amendment.
The First Amendment, in pertinent part, reads "Congress shall make no law…abridging the freedom of speech, or of the press…" In 1925, the Supreme Court incorporated the First Amendment, meaning they determined it not only applies to acts of Congress, but those of every state as well. Over the years, and as society progressed, what qualifies as "speech" has been explored and expanded. Interestingly, there is no Supreme Court precedent on photographs specifically qualifying as speech.
What it does qualify as is expressive conduct, and expressive conduct is protected by the First Amendment. This means that making photographs or videos that are intended to communicate a message to an audience are protected speech; this can be as general as intending to publish a photograph to a blog or volunteer it to local newspaper, a video to a YouTube channel, or even for some future, unspecified commercial or educational purpose. However, this seemingly firm concept has not been without tests, and it is not without some limitations.
The Federal Circuit Courts governing the following states have clearly established Constitutional protections while filming the police:
*It is worth nothing that District Courts in Pennsylvania have issued conflicting opinions, and there is technically no specific precedent allotting protection in Pennsylvania’s circuit with regards to videotaping and wiretapping.
The following states sit under a circuit that has acknowledged a Constitutional right, or at least the potential for one, however have applied a defense of qualified immunity and left the issue unresolved and without precedent:
**Maryland is unique; in 2010, a state court judge dismissed a felony wiretapping charge centered around filming a police officer on the grounds that a traffic stop is not a situation where a police officer can claim they have an expectation of privacy from recording. Furthermore, criminal charges were dismissed outright as unconstitutional violation of the First Amendment. Since this was unchallenged by the state, the Federal Courts did not have an opportunity to speak on the issue.
This list should go to show that this issue has likely touched every state, and has been addressed by the federal courts overseeing more than half of the states. This means that regardless of where you are, there is ample precedent supporting the position that filming a police officer during the course of their public duties in a public place is protected by the First Amendment as expressive conduct.
If you are arguably Constitutionally protected while photographing police in public while during the course of their public duties, no matter where you are, you should have a basic idea of what that entails. "Public duties" means while police officers are:
If you are asked to stop filming or making photographs, politely remind the officer that you have a First Amendment right to engage in expressive conduct in a public place that is not interfering with their duties.
There is on quick caveat here that applies to videotaping the police. While the images in the video are constitutionally protected, the audio has been a source of contention. Due to the wiretapping statutes in various states, if you are making an audio recording, the police may attempt to cite you for this and command you stop recording. They may also attempt to confiscate your camera. In that event:
You have a federal right to make photographs in a public place, and you should remember to assert this when encountering police.
While some states have remained silent or passed on the issue, it is important to note that there is not a single state or Federal Court that has deemed filming the police in public is impermissible and without Constitutional scrutiny. Photographing typically faces less confrontation than videotaping, and a local attorney can help you interpret and understand your state’s laws on wiretapping. If you have encountered a police officer that has stopped you from making photographs or videos, consulting a government attorney immediately can help secure not only your rights, but potentially create precedent to secure those rights for everyone.
Last Modified: 05-20-2018 08:33 PM PDTLaw Library Disclaimer
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