Right to Record Government Officials Engaged in the Exercise of their Official Duties
Right to record government officials in public
A growing consensus of courts have recognized a constitutional right to record government officials engaged in their duties in a public place. This First Amendment right to record generally encompasses both video and audio recording.
The U.S. Court of Appeals for the Ninth Circuit, which includes California, has held that there is a First Amendment right to record matters of public interest in public places, which “includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.” Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); see also Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995).
Right to record government officials in public
The First Amendment generally protects filming and audio recording of government officials engaged in their duties in a public place, subject to reasonable time, place, and manner restrictions. For example, members of the press and public may record a police officer during a protest or traffic stop, so long as the person does not interfere with the officer’s ability to perform his duties.
Although the Supreme Court has not addressed the issue, six federal appellate courts have explicitly recognized this constitutional right to record under the First Amendment, reflecting a growing consensus on the matter. See Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018); Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 689 (5th Cir. 2017); Am. C. L. Union of Ill. v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 87 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
Most states’ recording laws only restrict recording in public places when participants have a reasonable expectation of privacy, and therefore state recording laws generally do not conflict with this First Amendment right. Laws that do not have such a limitation, however, may violate the First Amendment.
See, e.g., Project Veritas Action Fund v. Rollins, 982 F.3d 813, 817, 836 (1st Cir. 2020) (finding that the Massachusetts recording law violates the First Amendment as to its prohibition of “secret, nonconsensual audio recording of police officers discharging their official duties in public spaces”).
Implied consent
It is generally legal to record or film a face-to-face interview when your recording device or camera is in plain view, or to record any type of conversation when the parties are warned of the recording and continue with the conversation. The consent of all parties is presumed in these instances. See, e.g., Alexander v. Pathfinder, Inc., 189 F.3d 735, 743 (8th Cir. 1999). It is a best practice, however, to record the subject’s verbal consent
Expectation of privacy
Recording laws generally only require consent to an in-person conversation if the individuals being recorded have a reasonable expectation of privacy. Not every state’s laws make this distinction, however.
To determine whether there is a reasonable expectation of privacy in a specific situation, courts often look at the totality of the circumstances, including where the conversation occurred (was it in public? in plain view of others?), what was being discussed (was it private in nature?), and how loudly the individuals were talking (could bystanders hear?). It is not always easy to predict what a court will do, given the fact-dependent nature of the analysis. In general, though, a person’s home has special significance and in-person conversations there have the greatest expectation of privacy. Additionally, if the in-person conversation occurs in a public place, and especially if the parties are talking loudly, there is no reasonable expectation of privacy.
Recordings made as part of the newsgathering process would not fall into this category. See, e.g., Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 406 (Minn. Ct. App. 1995).
Possessing and publishing illegally obtained recordings
As explained above, federal law and almost every state make it illegal to make, possess or disclose the contents of an illegally recorded conversation.
If a journalist receives a recording that was made illegally by someone else, whether the journalist can lawfully publish or broadcast it may first turn on whether she knows it was illegally obtained. Some state laws only prohibit disclosure if the person disclosing the recording has the knowledge that it was recorded illegally.
Even when the journalist knows the recording was made by another person illegally (for example, without the requisite consent), the First Amendment protects the journalist’s disclosure of that recording to the extent it contains truthful information of public concern, and the journalist was not engaged in the illegal conduct. In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that several news media defendants could not be held liable under the federal wiretapping statute or Pennsylvania recording law for broadcasting information obtained through an illegal recording of a private conversation. The case arose when an unknown person illegally recorded a phone conversation between two local union officials in Pennsylvania and passed the recording to a third party, who then gave it to the news media. In deciding that the First Amendment protected the news media’s disclosure, the court stressed that the news media had clean hands — they did not engage in or encourage the illegal recording — and the recorded conversation was of significant public concern.
Courts have cited Bartnicki to find other situations in which the First Amendment outweighs any privacy interests in the disclosure of an illegal recording. For example, the U.S. Court of Appeals for the First Circuit held that the First Amendment prevented Massachusetts law enforcement officials from interfering with an individual’s online posting of an audio and video recording of an arrest and warrantless search of the arrestee’s home, even when the poster had reason to know it was recorded illegally. Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007).
Bartnicki and subsequent cases suggest a broad protection of the press against laws that prohibit publishing the contents of an illegal recording, at least when the journalist has “clean hands” and the conversation is of significant public concern. However, the case law is continuing to develop, and it is important to know the precedent in your particular state.
FIRST AMENDMENT IMPLICATIONS
The First Amendment of the U.S. Constitution provides that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. This further complicates how to handle these “auditors” because they may not actually break a law.
Many of the U.S. Circuit Courts of Appeal have ruled, and the U.S. Department of Justice has taken the position, that citizens have a First Amendment right to film police performing their duties in public.
The case of Glik v. Cunniffe is one of the more influential, and oft-cited cases in this line of jurisprudence. In this case, Boston police officers arrested the defendant Simon Glik when he recorded an incident with his smartphone where officers were taking another individual into custody on the Boston Common. Glik was charged with violating the wiretap statute, disturbing the peace, and aiding in the escape of a prison-er. All the charges were subsequently dismissed for lack of probable cause. Glik then filed suit under 42 U.S.C. § 1983 alleging a violation of his First Amendment rights.
The case settled, but it was determined that if the police are aware that they are being recorded, it is not unlawful for a citizen to film law enforcement officers in the discharge of their duties in a public space. The First Circuit Court of Appeals ruled that “a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
The Court further advised that “such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” As a result, the Court concluded “we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was ‘secret’ merely because the officer did not have actual knowledge of whether audio was being recorded.” Notably, the Court determined that this state of the law was well established at the time of the arrest, and there-fore, denied the officers’ claim for qualified immunity from Glik’s First Amendment claim.
Other courts across the country have determined that citizens have a First Amendment right to record law enforcement personnel performing their duties in in public.
Some courts have even taken this one step further, ruling that secret audio recording of law enforcement officials performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions.
FILMING
Our next case to review in terms of the right to film is Gericke v. Begin. On March 24, 2010, at approximately 11:30 p.m. in Weare, NH, the defendant, Carla Gericke, was following Tyler Hanslin in her car. Sergeant Kelley of the Weare Police Department pulled his cruiser behind Gericke’s vehicle and activated his emergency lights. Both Gericke and Hanslin pulled over and Sergeant Kelley parked his cruiser between the two. Kelley advised Gericke that she was not the one being detained and told her to move her car. Gericke moved her car to the adjacent Weare Middle School parking lot to wait for Hanslin.
Kelley approached Hanslin’s vehicle and Hanslin advised Kelley that he was carrying a firearm and was properly licensed. After parking her car in the lot, Gericke got out and approached the fence that separated the lot from the road. From there, she attempted to audio and video record the scene from approximately 30 feet away and announced that she was doing this. (It was later determined that despite her best efforts, Gericke was not actually able to record, but still pointed the camera as though she were doing so.) Gericke thereafter put the camera away and sat in her vehicle.
Officer Montplaisir arrived on scene and demanded to see where the camera was. Gericke refused to tell him. The officer requested her li-cense and registration. Again, Gericke refused. Gericke was subsequently arrested, her camera seized, and she was charged with disobeying a police officer, obstructing a government official, and unlawful interception of oral communications, the New Hampshire equivalent of a wire-tap charge under Massachusetts law. All charges were dismissed. Gericke filed suit under 42 U.S.C. § 1983 alleging a violation of her First Amendment rights.
Like Glik, the First Circuit ruled that Gericke, and any citizen for that matter, has a clearly established presumptive right to videotape police activity in public. Most notably, the First Circuit provided that “reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.” The Court explained that “such a restriction could take the form of a reasonable, contemporaneous order from a police officer, or a preexisting statute, ordinance, regulation, or other published restriction with a legitimate governmental purpose.” This language from the ruling is particularly important and should provide guidance to officers as to the appropriateness of such restrictions:
The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure—for example, a command that bystanders disperse—that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons. However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with their duties.
Likewise, other courts across the country have determined that there may be restrictions placed upon a citizen’s right to record under certain circumstances, such as in situations during traffic stops, sobriety checkpoints, and at times on public properties.
TAKEAWAYS
The major points from this article are the following:
1. A First Amendment audit is a form of activism where an individual seeks to exercise their First Amendment rights. The audits can take place in public spaces such as streets, libraries, post offices, beaches, town halls, police and sheriffs’ stations, and others. Law enforcement should be prepared to deal with First Amendment auditors and they constitutionally have a right to film law enforcement at certain times.
2. Many of the U.S. Circuit Courts of Appeal as well as the U.S. Department of Justice have ruled that citizens have the First Amendment right to film police performing their duties in public (such as in Glik).
3. There are restrictions that outweigh a citizen’s right to film such as public safety and when statutes and other laws outweigh First Amendment Rights (such as in Gericke).
Other RELEVANT CASES
Lozman v. City of Riviera Beach Supreme Court considers free speech vs. retaliatory arrests
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)
ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012)
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)
Turner v. Driver, No. 16-10312 (5th Cir. 2017)
Fields v. City of Philadelphia, 862 F.3d 353 (2017)
Sharp v. Baltimore City Police Department, No. 1:11-cv-02888-BEL
Kelly v. Borough of Carlisle
McCormick v. City of Lawrence, 130 Fed.Appx. 987, 988-89 (10th Cir. 2005)
Szymecki v. Houck, 353 Fed.Appx. 852, 853 (4th Cir. 2009)
Bartnicki v. Vopper, 532 U.S. 514 (2001)
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FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here
Awarding Discovery Based Sanctions in Family Law Cases – Click Here
FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here
Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here
Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed
Epic Criminal / Civil Right$ SCOTUS Help – Click Here
Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here
Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on
Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors
Please take time to learn new UPCOMING
The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site
The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.
The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.
God leaves NO CHILD LEFT BEHIND, it’s the child who refuses to return to his Father!
Our Father is always available, never drunk, never lies, never allows any harm to his children… (a perfect father, hence the name God, the creator)
the harm that one may perceive is not harm but an awakening, if you join with him by asking for his help
pray with good intent in your heart, believe like you once believed in Santa! That means NO DOUBT, 100% PURE TRUST in him!
He never lies, He will deliver! God, through Jesus and only him will give you what you need when you need it!
Gospel Mt 11:28-30
Jesus said to the crowds:
“Come to me, all you who labor and are burdened, and I will give you rest. Take my yoke upon you and learn from me, for I am meek and humble of heart; and you will find rest for yourselves. For my yoke is easy, and my burden light.”
Trust God!
He Lives in Those Whom Invite Their Father In
Nothing Formed Against You Shall Prosper !
