A patchwork of state laws applies to recording the communications of others, including wiretapping and eavesdropping laws. These laws may impose liability for recording audio of a conversation without the consent of one or more parties, or for making secret audio recordings.
However, First Amendment considerations arise when you are openly recording the activities of police officers (or other public officials) carrying out their duties in public places. A number of U.S. Courts of Appeals have held that, in such circumstances, the First Amendment protects the right to record audio and video regardless of whether the police/officials consent. This constitutional right would override any state or federal laws that would otherwise prohibit such recording.
Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:
First Circuit (with jurisdiction over Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[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.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).
Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”).
Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco, _ Fed. App’x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”).
The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), relying heavily on the First Circuit’s reasoning in the Glik case.
If you are recording in New Jersey or in one of the states or territories within the First, Seventh, Ninth or Eleventh Circuits, the First Amendment right to record should protect you against prosecution for recording the police or other public officials as they carry out their duties in public places.
Even if you are not within these jurisdictions, these decisions may be persuasive to other courts. Although two other U.S. Courts of Appeals have declined to hold that a First Amendment right to record was “clearly established” as of particular dates in the past, see Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62 (3rd Cir. 2010); Szymecki v. Houck, 353 Fed. App’x 852, 852 (4th Cir. 2009) (per curiam), none so far have rejected the existence of such a right. Furthermore, the United States Department of Justice has openly stated its position that the First Amendment protects all U.S. citizens who record the activities of the police in public, and has intervened in at least one civil rights lawsuit against police officers to support that First Amendment right. See Sharp v. Baltimore City Police Dep’t, No. 1:11-cv-02888-BEL (D. Md. Statement of Interest filed January 10, 2012).
NOTE: The First Amendment right to record does NOT give you the right to interfere in the performance of officials’ duties, or violate generally applicable laws. You may still face criminal prosecution or civil liability if, while recording, you: interfere with an arrest; trespass into secure government areas or private property; fail to respond to legitimate measures by law enforcement to control riots or disturbances; or otherwise interfere with official activity or violate private rights. This does not give you the right to film or record private citizens that are nongovernment employees in the performance of their jobs, or their personal lives.
Also NOTE: that the reference to public places includes any state or federally owned property that is not restricted because of national security such as military bases. this includes all state and federal government offices as well as any private spaces where the public has access and is allowed to move freely.
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) was a case at the United States Court of Appeals for the First Circuit that held that a private citizen has the right to record video and audio of public officials in a public place, and that the arrest of the citizen for a wiretapping violation violated the citizen’s First and Fourth Amendment rights.
On October 1, 2007 while walking in Boston Common,[fn 1] Simon Glik observed John Cunniffe, Peter Savalis, and Jerome Hall-Brewster, Boston police officers who were effecting an arrest. A bystander stated that the officers were hurting the person being arrested. Glik filmed the encounter with his cell phone due to his concern that the officers were using excessive force. Although Glik was 10 feet away and was not interfering with the arrest, he was told by one of the officers to stop taking pictures. Glik replied that he was recording the incident, and when the officer determined that this included audio, placed Glik under arrest for violating the Massachusetts wiretapping law.
Glik was charged with wiretapping, disturbing the peace, aiding in the escape of a prisoner. He was taken to the South Boston police station and his cell phone and a computer flash drive were held as evidence. The Commonwealth dropped the charge of aiding in escape prior to trial. The Boston Municipal Court dismissed the other two counts in February 2008, noting that there was no probable cause for the wiretapping arrest and that the officers were unhappy about being recorded.
Glik then filed a complaint with the Internal Affairs section of the Boston Police Department. After the department failed to investigate the complaint, Glik, represented by the American Civil Liberties Union and David Milton and Howard Friedman of the Law Offices of Howard Friedman, filed a civil rights lawsuit against the officers and the city, alleging violations of his First and Fourth amendment rights. The officers moved for dismissal, based in part on qualified immunity. The United States District Court for the District of Massachusetts denied the motion, noting that “this First Amendment right publicly to record the activities of police officers on public business is established.”
The officers then made an interlocutory appeal of the denial to the First Circuit Court of Appeals.
Judge Kermit Lipez delivered the opinion of the court. The court noted the principle of qualified immunity balanced the need to hold public officials accountable with the need to shield such officials from harassment on account of their public duties. The court therefore applied a two-prong test, first, did the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the violation.
The court first addressed the question of whether Glik’s First Amendment rights had been violated. It noted that “we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties” and held that Glik had a constitutional right to videotape a public official in a public place. The court noted that this right was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. It was clear in the current case that none of those limitations applied.
Second, the court looked at whether the right to videotape was clearly established at the time of the arrest. The court had “no trouble concluding that ‘the state of the law at the time of the alleged violation gave the defendants fair warning that [their] particular conduct was unconstitution al.'” (brackets in original) The court noted that some constitution violations are “self-evident” and the right to film public officials in a public place was clearly established a decade prior to Glik’s arrest.
Next, the court determined if Glik’s Fourth Amendment rights had been violated. The court noted that an arrest must be based upon probable cause. Noting that Glik claimed that no probable cause existed and that the officers stated that probable cause existed that the wiretap statute was violated. The court looked to the Massachusetts Supreme Judicial Court for the determination of state law. The Massachusetts court required that the recording be made secretly to be a violation, and that when a camera was in plain sight a recording could not be held to be made secretly. In Glik’s case, the criminal complaint stated that “openly record[ed] the police officers”, (brackets in original) was not made in secret, and that therefore the officers had no probable cause to arrest Glik. Since there was no probable cause, Glik’s Fourth Amendment rights were violated.
Finally, the court determined that the absence of probable cause as a constitutional violation was clearly established in law. The court therefore held that the district court’s denial of the officers of qualified immunity was proper, affirming the decision
ACLU Mobile Justice app
The app allows users to record law enforcement, alert other users to nearby law enforcement encounters, and to submit videos and incidents to the ACLU. https://www.aclu.org/issues/criminal-law-reform/reforming-police-practices/aclu-apps-record-police-conduct
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