The Constitutional Right to Record

By Cary Holley
Cary Holley is a sophomore at the University of Pennsylvania studying Political Science.

The proliferation of cell phone use has translated into more access to what is going on in the world around us, which also has important implications for social justice issues. The ability to gather visual evidence of misconduct using cell phones on the part of governmental officials, especially police officers, can expose injustice as well as increase accountability. However, the Founding Fathers understandably did not foresee the advent of such technology and consequently did not delineate constitutional limitations of its usage. Luckily, recent legal developments have converged toward establishing a set doctrine for this important constitutional issue.

When cases concerning the right to record police have come up in the past, legal scholars have traditionally interpreted them to be a First Amendment issue. In other words, videotaping police officers can essentially be viewed as equivalent to protesting. However, there are important limitations to this freedom. In the 2011 Glik v. Cunniffe case, which was heard by the First Circuit U.S. Court of Appeals, the court ruled that the First Amendment did in fact cover the right to record, but with important restraints. This case concerned three Boston police officers, who arrested and charged Simon Glik with several crimes, just because he was recording the officers with his cell phone. [1] After ruling in favor of First Amendment protections to record, the First Circuit stipulated that the right “may be subject to reasonable time, place, and manner restrictions.” [2] These stipulations are noticeably vague and thus leave enough room for wide interpretation for what these restrictions may entail.

A major development in this constitutional issue came in the form of  two instances of citizens recording police that occurred here in Philadelphia. An anti-fracking protester and a college student at a party that was being shut down, both decided to record the police and were both punished for it: the protester was physically prevented from recording her arrest, and the college student was arrested and his phone was searched. [3] Both of these events were brought forward as one case, named Fields v. City of Philadelphia after college student Richard Fields, which was heard by the 3rd Circuit U.S. Court of Appeals in July, 2017. In accordance with the 1st, 5th, 7th, 9th, and 11th Circuits, the 3rd U.S. District Court of Appeals unanimously ruled in favor of First Amendment protections to record the police. [3] Such a decision indicates the formation of a doctrine in regard to cell phone recording of police officers. The court noted a “growing consensus” on this topic among other legal bodies when making this decision, and the city of Philadelphia resolved the case with a sizeable settlement. [4]

It is important to note that although the courts may have reached a consensus on the constitutionally-protected right to record, the implementation of such a freedom requires a culture change for officers and their policies. For example, the arrest of college student Rick Fields that led to the aforementioned case occurred even though the Philadelphia Police Department Commissioner, Charles Ramsey, released a memo to officers stating that citizens had a First Amendment right to record them. [5] Throughout the country, despite the general judicial consensus on the issue, police officers continue to infringe upon this right. Some police officers have even lied to citizens by telling them that it is actually illegal to record police encounters. In March of this year, an officer in North Carolina falsely told a citizen that there was a new law prohibiting the filming of police officers. [6]

In total, the right to record police is constitutionally protected but is not an absolute right. Courts have asserted that there are limitations to this right, but they have not at all been thoroughly delineated. Furthermore, the ability to exercise this right without punishment depends in part on the willingness of police officers to comply with it. Considering the frequent instances of shootings by police and misconduct, this right to record matters now more than ever. Not only does it increase accountability, but providing visual evidence can give credence to claims about misconduct that have been neglected for years. Thus, it is critical that citizens continue to bring cases before courts when this right is infringed upon. Even though the Founding Fathers could not have predicted the exact contours of this issue, their steadfast belief in the importance of checking power align with this imperative freedom.

Sources:
[1] “Glik v. Cunniffee.” The American Civil Liberties Union of Massachusetts. Accessed February 28, 2018. https://aclum.org/cases-briefs/glik-v-cunniffe/
[2] Calvert, Clay. “The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection?” UCLA Law Review. 2016. Accessed February 28, 2018.
https://www.uclalawreview.org/the-right-to-record-images-of-police-in-public-places-should-intent-viewpoint-or-journalistic-status-determine-first-amendment-protection/
[3] Stern, Mark Joseph. “Federal Appeals Court: You Have a Constitutional Right to Film Police Officers in Public.” Slate. July 7, 2017. Accessed February 28, 2018.
http://www.slate.com/blogs/future_tense/2017/07/07/third_circuit_affirms_the_constitutional_right_to_record_police_officers.html
[4] “ACLU of Pennsylvania Announces Settlements in Philadelphia Lawsuits That Established a First Amendment Right to Record the Police.” The American Civil Liberties Union of Pennsylvania. December 5, 2017. Accessed February 28, 2018.
https://www.aclupa.org/news/2017/12/05/aclu-pennsylvania-announces-settlements-philadelphia-lawsuit
[5] “Fields v. City of Philadelphia.” The American Civil Liberties Union of Pennsylvania. Accessed February 28, 2018.
https://www.aclupa.org/our-work/legal/legaldocket/fields-v-city-philadelphia/
[6] Holley, Peter. “Police falsely told a man he couldn’t film them. . .” The Washington Post. March 10, 2017. Accessed February 28, 2018.
https://www.washingtonpost.com/news/post-nation/wp/2017/03/10/video-shows-police-telling-an-uber-driver-its-against-the-law-to-record-police-its-not/?utm_term=.c8829bc0ff67
​Photo Credit: Flickr user Eduardo Woo

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