Update: In July of 2017 a federal court reversed the decision described below. See our post on the reversal.
Constitutional and criminal law are littered with nuances and vagaries. But at least we’ve got a basic, First-Amendment rule on recording the police. To summarize:
Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) an officer in public while he is performing his duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law.
A recent federal-court decision, however, has gummed up the works. At least for the moment.
The case in question involves separate lawsuits by two citizens claiming Philadelphia police officers violated their rights. The first citizen, apparently interested merely in taking what he thought would be a good picture, photographed about 20 officers standing outside a home. The second citizen tried to videotape an arrest of a protestor at a rally. Each plaintiff has alleged subsequent mistreatment by the officers on hand. (See the opinion for more detail.)
The judge assigned to the case held last month that the First Amendment doesn’t give citizens the right to “photograph police absent any criticism or challenge to police conduct.” The judge essentially said that you can’t photo the police merely for the sake of photo’ing the police.
To observe that it’d be a big deal if this line of thinking were to catch on might be to understate. Think for a moment about some of the smartphone-documented police/citizen encounters in recent years.
The decision represents a significant break from the widely accepted rule noted above. But an appeal is apparently coming. And at least one expert expects the higher court—which is one step below the U.S. Supreme Court—to reverse the trial judge.
If it doesn’t, we’ll have much more to write about.