A New First Amendment Right: Videotaping the Police
The most powerful weapon against police misconduct — taping cops with cell-phone cameras — is getting support from the courts
May 21, 2012
Scott Olson / Getty Images
A police officer and protesters videotape each other during a demonstration in Chicago on May 18, 2012
When protesters gather in Chicago this week to express their views about the NATO summit, people will be able to videotape the police and post videos of any police misconduct. Recording the police used to be illegal in Illinois. But this month, a federal appeals court ruled that a state wiretap law prohibiting it conflicts with the First Amendment.
A legal battle has been raging over whether people have the right to make video recordings of the police in public places. The video takers and their supporters insist that recording the police is citizen journalism protected by the First Amendment. But police across the country have insisted it is not — and have been arresting the video makers. The legal tide now appears to be turning decisively in favor of the right to take video of the police. This month, the video takers scored two big new wins — the ruling in Chicago and an important statement from the U.S. Department of Justice in a Baltimore case.
It is hard to believe, in this YouTube age, that taking video of people in public could be a crime. But the police are serious about not wanting to be recorded — and they have been making arrests to prove it. In 2010, Maryland resident Anthony Graber was charged with violating wiretap laws and threatened with as much as 16 years in prison for videotaping his own traffic stop. This month, twin teenagers in Mississippi said they were arrested and taken to jail for recording the police investigating a shooting at their apartment complex.
Eager as the police have been to declare this kind of recording criminal, the courts have been more skeptical. When Graber was prosecuted for making his video of the state trooper who pulled him over, the judge threw out the charges. Last summer, the Boston-based U.S. Court of Appeals for the First Circuit ruled that the police violated the First Amendment rights of Simon Glik, who was arrested for making a cell-phone video of police forcefully arresting a suspect on the Boston Commons. In March, Boston agreed to pay Glik $170,000 in damages and legal fees for infringing on his right to record the police.
This month’s new legal victories strongly bolster this emerging legal right. In the Chicago case, the Seventh Circuit Court of Appeals blocked the state from using a wiretap law — which prohibits audio recording of anyone without their permission — to arrest people who take video of the police in public. Using wiretap laws in this way, the court said, “restricts far more speech than necessary to protect legitimate privacy interests.”
Last week, the Department of Justice made its views on the issue known in a Baltimore civil lawsuit. A man named Christopher Sharp is suing the Baltimore police for destroying the video archive on his smart phone after he recorded officers arresting his friend. In a letter to the police department, the Department of Justice stated that the right of people to take videos of the police in public places is “firmly rooted in long-standing First Amendment principles.”
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The march of technology is the story of unintended consequences. Create a system to link the Defense Department’s research computers — the origins of the Internet — and you end up with Google and Facebook. When video capability was added to smart phones, and when YouTube was created, it is unlikely anyone was thinking of what it would mean for policing. But the impact is enormous. No police officer wants to be removed from the force because of a viral video. Technology, however, cannot do this alone. For video to keep the police honest, the law must protect the people who do the recording. When Simon Glik was arrested in Boston and Anthony Graber faced 16 years in prison in Maryland, it was not clear that the law would do this. But after the latest statements from the Seventh Circuit and the Department of Justice, a clear consensus seems to be emerging that the First Amendment is on the citizen journalists’ side.
Cohen, the author of Nothing to Fear, teaches at Yale Law School. The views expressed are solely his own.