Let's start with a trio of foundational assumptions that affect us all as citizens and citizen journalists.
First, when people are situated in public venues, such as parks, streets or sidewalks, they have no reasonable expectation of privacy. What they do in those common locations thus is fair game for anyone else to witness and, in turn, to photograph and record.
Second, police officers and law enforcement officials are public servants and government employees. They work for us -- the taxpayers -- and their actions are not only of public interest, but of public concern.
Third, the First Amendment to the U.S. Constitution protects the freedom of speech against government censorship.
With those three suppositions in mind, it seems like a legal no-brainer that citizens have the right to film and record police officers performing their official duties in public places and to disseminate the resulting images to others as they see fit.
But as TechDirt recently reported, "people are still being arrested for recording police officers. Sometimes it's a bad (and outdated) wiretapping law that gets abused. Sometimes it's other, unrelated laws that are stretched to fit the circumstances, which means those recording officers are hit with charges ranging from interfering with police investigations to criminal mischief, depending on how the interaction goes."
For example, the Baltimore Sun reported in February 2014 on a man filming an arrest in Towson, Md., who allegedly was told by an officer to "shut your [expletive mouth] or you're going to jail." When the man replied he had a right of free speech, the officer retorted "You just lost it."
And in April, CBS News reported that Lazaro Estrada "was arrested and charged with obstruction of justice after he recorded a Miami-Dade police officer arresting someone else outside a Cutler Bay, Fla., store."
In fact, a website is devoted to instances where law enforcement officials have arrested or otherwise allegedly harassed people who try to videotape or capture photographs of police officers doing their job in public places. It is appropriately called Photography is Not a Crime.
A May 29 post describes how an officer with the police department in Crowley, La., arrested Theresa Richard for allegedly recording him in public. The site features the video that landed Richard in trouble with the law.
Some good news, however, came in another case late last month. A federal appellate court in Gericke vs. Begin considered the situation of a New Hampshire woman, Carla Gericke, who was arrested and initially charged with violating the Granite State's wiretapping statute after she attempted to film (her video camera ultimately failed to work) a late-night traffic stop of a friend in the town of Weare. Although prosecutors decided not to move forward with the charge, Gericke sued, claiming "the officers violated her First Amendment rights when they charged her with illegal wiretapping in retaliation for her videotaping of the traffic stop."
The U.S. Court of Appeals for the First Circuit held on May 23 there is, indeed, a First Amendment right to record a traffic stop, although that right is not unlimited. The appellate court reasoned that
the circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure . . . 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 his duties.
The decision in Gericke builds on a 2011 opinion by the First Circuit in Glik vs. Cunniffe. That case involved the arrest of Simon Glik for using "his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common." The court in Glik ruled that "the First Amendment protects the filming of government officials in public spaces." Importantly, the decision does not just apply to professional journalists, but to all citizens.
That is why these cases are so important. Today, anyone and everyone has the capacity to be a journalist and to record with their smartphones potential abuses of government authority. One need only recall the video footage captured by George Holliday in 1991 of Los Angeles police officers beating Rodney King to understand this reality. The court in Glik observed that
changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.
As for Carla Gericke, her case isn't over. The New Hampshire Union Leader reported that it returns to the trial court to determine if her rights were, in fact, violated or if the officers were justified under the particular circumstances of her case. That will depend on whose version of the facts a jury believes. As Charles P. Bauer, the attorney for the Weare Police Department, put it, "There's another side of the story." How this plays out remains to be seen. For now, filming the police in public places remains a risky First Amendment proposition.