Federal Law Needed to Protect Public, Journalists’ Right to Record Police

June 24, 2020 01:30

“We ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.”

Judge Thomas Ambro, 3rd Circuit U.S. Court of Appeals, Fields v. City of Philadelphia 


Virtually every day, officers across the country interfere with the First Amendment right of any member of the public to record police officers in public places. In the weeks of protests following George Floyd’s death at the hands of police, this problem has been particularly acute – especially among journalists.
 
I have heard stories from many journalists who were lawfully and legitimately reporting from protests yet were arrested, assaulted or prevented from recording.
 
The U.S. Press Freedom Tracker, the archive of record for attacks on journalists in the United States, is in the process of documenting more than 440 incidents of journalist arrests and assaults (most inflicted by law enforcement) during civil unrest since May 25.
 
There are also reports from countless members of the public who suffered the same fate.
 
As we consider police reform, we also need the federal government to affirm and remove any ambiguity about the right of the public and journalists to record or broadcast live any police officers’ activity. Guaranteeing this right is an important measure of accountability for any agent acting as a public official – especially officers of the law.
 
Right now, only about half of the United States Circuit Courts of Appeals have expressly recognized that members of the public possess a qualified right, grounded in the First Amendment, to photograph and record the police in public places, subject to reasonable time, place and manner restrictions.
 
The correctness of these rulings is supported by the foundational principle articulated by the Supreme Court that the constitutional protections for free speech and for the press were fashioned to assure the unfettered interchange of ideas for bringing about political and social changes desired by the people. (See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 [1964].) 
 
States/Territories Where Federal Appeals Courts HAVE Ruled Police May Be Lawfully Recorded
 
1st Circuit U.S. Court of Appeals 3rd Circuit U.S. Court of Appeals 5th Circuit U.S. Court of Appeals
 
Maine
Massachusetts
New Hampshire
Puerto Rico
Rhode Island
 
 
Delaware
New Jersey
Pennsylvania
U.S. Virgin Islands
 
Louisiana
Mississippi
Texas
 
7th Circuit U.S. Court of Appeals 9th Circuit U.S. Court of Appeals 11th Circuit U.S. Court of Appeals
 
Illinois
Indiana
Wisconsin
 
Alaska
Arizona
California
Guam
Hawaii
Idaho
Montana
Nevada
Northern Mariana Islands
Oregon
Washington
 
 
Alabama
Florida
Georgia
 
 
States Where Federal Appeals Courts HAVE NOT Ruled Police May Be Lawfully Recorded
 
2nd Circuit U.S. Court of Appeals 4th Circuit U.S. Court of Appeals 6th Circuit U.S. Court of Appeals
 
Connecticut
New Hampshire
New York
Vermont
 
Maryland
North Carolina
South Carolina
Virginia
West Virginia
 
 
Kentucky
Michigan
Ohio
Tennessee
 
 
8th Circuit U.S. Court of Appeals  10th Circuit U.S. Court of Appeals DC Circuit U.S. Court of Appeals
 
Arkansas
Iowa
Minnesota
Missouri
Nebraska
North Dakota
South Dakota
 
 
Colorado
Kansas
New Mexico
Oklahoma
Utah
Wyoming
 
 
Washington, D.C.
 
Federal Circuit U.S. Court of Appeals
 
Nationwide jurisdiction for appeals in “specialized cases,” e.g., patent law and international trade
 
 
Just because a federal appeals court hasn’t ruled on this issue doesn’t necessarily mean recording police is unlawful or otherwise prohibited. Apart from these court rulings, or lack thereof, some individual states, counties, parishes and municipalities may have enacted laws, ordinances, regulations or policies allowing for the lawful recording of police.
 
For example, earlier in June Gov. Andrew Cuomo (D-N.Y.) signed into law a package of police reform legislation. Almost unnoticed among the reform package was what Cuomo and the state legislature call the “New Yorker’s right to monitor act,” giving the public, including journalists, the right to “capture or attempt to capture any moving or still image, sound, or impression through the use of any recording device, camera, or any other device capable of capturing audio, moving or still images, or by way of written notes or observations.”
 
The law meant to prohibit law enforcement from interfering with the public’s right to record contains a loophole: “Nothing in this [act] shall be construed to permit a person to engage in actions that physically interfere with law enforcement activity or otherwise constitute a crime defined in the penal law involving obstructing governmental administration.”
 
This leaves open the very real possibility that officers can interfere with any recording merely by claiming what police are doing is part of an ongoing investigation, and, therefore, that the act of recording is obstructing “law enforcement activity.”
 
We need to affirm this right and remove any ambiguity about the public’s right to record law enforcement through a strong federal law. Specifically, RTDNA would like to see federal legislation that:
  • Confirms the right of the public, including journalists, to broadcast, capture or attempt to capture any moving or still image, sound or impression through the use of any recording devices, camera or any other device capable of capturing audio, moving or still images, or by way of written notes or observations.
  • Makes it a federal crime for law enforcement to interfere unlawfully with the right of the public, including journalists, to broadcast, capture or attempt to capture police activity lawfully.
While legislation including these elements would not prevent law enforcement from confiscating or destroying any member of the public’s phone, camera or recording device, or assaulting or arresting someone while they’re lawfully recording, it would allow federal prosecutors to bring cases after the fact. In addition, we need Congress to move on The Journalist Protection Act, legislation making it a federal crime to assault any working journalist.
 
For journalists, we need this action to protect our right to act as a conduit to an informed public by using their professional training to shine a light on what is happening from community to community without different, and sometimes conflicting, laws or regulations.
 
Right now, RTDNA is asking Congress to enact legislation that will leave no question about our right to record once and for all. We ask you to join us by contacting your Senators and Representative. Share your personal experience, and how your work fuels transparency and accountability between law enforcement and the public you both serve. We also encourage you to reach out to your governor and mayor with this same request.
 
Now more than ever we understand the power of video and audio to shine a light on the reality of encounters between police officers and the public, to facilitate accountability for the actions of police and to fuel reform.
 
As journalists, we are responsible for not only ensuring we have the right to record, but for codifying this right for all members of the public.
 

 


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