Free Speech

"There Is a Constitutional Right of the Public to Film the Official Activities of Police Officers in a Public Place."

So says the Hawaii Supreme Court.

|The Volokh Conspiracy |

So said the Hawaii Supreme Court this week, in State v. Russo, joining the federal appellate courts that have so held. An excerpt:

Although the First Amendment does not explicitly protect the right to film or photograph matters of public interest, the United States Supreme Court "ha[s] long recognized that its protection does not end at the spoken or written word." The Court has likewise considered that news gathering may receive constitutional protection because "without some protection for seeking out the news, freedom of the press could be eviscerated." This understanding of the First Amendment serves the core function of "prohibit[ing] government from limiting the stock of information from which members of the public may draw." The constitutional safeguard extends beyond protection of the press; the "First Amendment protects the public's right of access to information about their officials' public activities."

Based on these principles, numerous jurisdictions have held that the First Amendment affords individuals the right to photograph and film police officers in public places. In Glik v. Cunniffe, for example, the First Circuit Court of Appeals held that "filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities," is protected by the First Amendment. The First Circuit explained that "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'?" Promotion of the free discussion of government operations is particularly desirable in the context of law enforcement officials because it may "aid[?] in the uncovering of abuses" and "have a salutary effect on the functioning of government more generally."

Several other federal courts have likewise concluded that, in light of these considerations, individuals have a constitutionally-protected First Amendment right to photograph and film police officers in public. See Turner v. Lieutenant Driver (5th Cir. 2017) ("We agree with every circuit that has ruled on this question: Each has concluded that the First Amendment protects the right to record the police."); Smith v. City of Cumming (11th Cir. 2000) (recognizing a "First Amendment right … to photograph or videotape police conduct" because the 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"); Fordyce v. City of Seattle (9th Cir. 1995) (recognizing a "First amendment right to film matters of public interest" and "to gather news" in the context of police officer's alleged assault and battery against individual filming the police officers assigned to work a demonstration); ACLU of Illinois v. Alvarez (7th Cir. 2012) (recognizing that the First Amendment protects "[a]udio and audiovisual recording" and "gathering news and information, particularly … about the affairs of government" in the context of civil liberties organization's plan to make audiovisual recordings of police officers and disseminate the recordings to the general public).

Recently, the Third Circuit Court of Appeals considered the right of bystanders to record police officers performing their official duties. Fields v. City of Philadelphia (3d Cir. 2017). The Fields court noted that "to record what there is a right for the eye to see and the ear to hear … lays aside subjective impressions for objective facts." Thus, "to record is to see and hear more accurately." In addition to the valuable benefit of recordings to facilitate discussion and be broadly distributed, the Third Circuit observed that

the proliferation of bystander videos has spurred action at all levels of government to address police misconduct and to protect civil rights. These videos have helped police departments identify and discipline problem officers. They have also assisted civil rights investigations and aided in the Department of Justice's work with local police departments. And just the act of recording, regardless what is recorded, may improve policing…. And of particular personal concern to police is that bystander recordings can exonerate an officer charged with wrongdoing.

The Fields court underscored that in order for the First Amendment's protection to have meaning, "the Amendment must also protect the act of creating that material." …

We agree with the reasoning of the First Circuit and of other federal courts of appeal that have considered this issue. The rights to free speech and press serve not only to protect the individual's right to self-expression, but also to promote the vital goal of "affording the public access to discussion, debate, and the dissemination of information and ideas." Exercising the constitutionally-protected rights to free speech and press plays a crucial role in "informing and educating the public, offering criticism, and providing a forum for discussion and debate."

This aspect of the First Amendment is all the more critical when the ideas and information sought to be disseminated pertain to government officials and law enforcement personnel, "who are granted substantial discretion that may be misused to deprive individuals of their liberties." Public access to such information serves to guarantee "public oversight of law enforcement" and "minimizes the possibility of abuse by ensuring that police departments and officers are held accountable for their actions." …

We also agree [with the cases cited above] that this right is subject to reasonable restrictions as to the time, place, and manner of the photography or recording. Such restrictions may be necessary to ensure that law enforcement officials are capable of carrying out their duties and maintaining the safety of both the general public and of the individual conducting the photography or videography. We are persuaded that the threshold requirement for the issuance of time, place, and manner restrictions as set forth by the First Circuit in Gericke strikes the appropriate balance between ensuring public safety, preserving law enforcement's efficacy, and protecting constitutional free speech and press rights. [Text moved:] [Gericke] specified that a time, place, or manner regulation could be issued by law enforcement to an individual filming police performing their duties in public "only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with [the officer's] duties."

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  1. Worthing noting also that courts are extending Freedom of the ‘Press’ to include acts by ordinary citizens in the gathering of information, the courts are not particularly sympathetic to claims by ‘reporters’ or ‘journalists’ to special privileges in handling protection of information, the identity of sources, etc. Freedom of the Press does not professionalize the work of the ‘press’. Indeed, establish a special class of ‘the press’ would deny that we are not all, in some way, ‘the press.’

    1. Professor Volokh is one of the primary proponents of Freedom of the Press referring to the technological Printing Press, ie the freedom of the press is the freedom yo amplify ones voice. He’s had many articles on it in the past, all good reads. Seeing as how the founding father’s were not corporate press entities blessed by Britain as they created fliers and newspapers, it makes senses that was not the intention of the clause.

      1. Were journalistic profesionals even called “the press” at the time the 1st amendment was written? My impression is that they started being called that some time in the 1800’s, AFTER the 1st amendment was written.

        1. You can read Prof Volokh’s article and find out! IIRC the answer is mostly no.

      2. In response to JesseAz:

        Prof. Volokh is a primary conservative proponent of freedom of the “press,” narrowly construed. This should be borne in mind each time he seems to be celebrating a specific First Amendment liberty.

        Two basic examples: Volokh valiantly, but unsuccessfully, attempted to convince the Supreme Court to narrowly interpret the scope of the First Amendment in United States v. Alvarez (the “Stolen Valor” case); and he played an instrumental role in convincing the public that only “clear” or obvious parody is entitled to constitutional protection, in his commentary on America’s leading criminal “satire” case (see the documentation at: https://raphaelgolbtrial.wordpress.com/).

        To which one can now add his peremptory reversal of Reason’s longstanding policy of radical freedom in the matter of tolerating any kind of comment posted under the articles on this site. Volokh has begun to enforce a new policy, removing (i.e. censoring) comments that he feels are inappropriate or “off-topic.” He has already eliminated several of my own comments, and who knows how many others he has eliminated as well.

        1. P.s. more generally, Volokh’s style is very much that of a conservative publicist: he will occasionally engage with opposing arguments, perhaps when he feels it’s in his interest; but he tends to ignore them when he is on weak ground (a technique known as “hit-and-run” scholarship: state a view, and then allow it to subsist by quietly moving on to another topic without answering criticism that’s difficult to answer). Of course many academics and commentators understand what’s involved here and simply live with the reality; but it’s unfortunate that this kind of questionable practice has become a blandly accepted feature of American academic culture.

    2. Freedom of the press is NOT limited to those who own one…

  2. Indeed — I wrote about the historical background to this at Freedom for the Press as an Industry, or for the Press as a Technology? — From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012).

    1. Teaches me not to scroll down. Oh well. Consider my prior comment due praise.

  3. And yet — police departments everywhere keep interfering with civilian efforts to record their public actions. Else why would so many courts have to /keep/ ruling for the civilians?

    1. Not just police departments but town council’s and other government proceedings. Some states even attempted to disallow the footage of candidates or proceedings in the use of news casts and such.

    2. At some point, this will have been ruled on enough times in enough jurisdictions that Qualified Immunity will not protect the police actions from damage claims.

      1. Already has, far as I’m concerned.

  4. And yet — police departments everywhere keep interfering with civilian efforts to record their public actions. Else why would so many courts have to /keep/ ruling for the civilians?

  5. Hmm. How might this affect a demand to unlock a person’s cellphone if they claim a right to privacy of journalistic materials?

    Rephrasing: do journalists have a right to not turn their notes and materials over to law enforcement? if so, should that right also extend to a “regular citizen,” who is not a member of a particular journalistic organization?

    1. Do you think corporate journalists have extra rights us normal folks don’t?

      1. No, I don’t. But some courts might. That’s why I asked. I seem to recall from way back in the misty darkness of my youth learning that the First Amendment somehow protected “authorized journalists” from having to turn over notes, etc. But I wasn’t sure if that was correct. My youth was a long time ago.

        1. A few state courts have recognized a reporter’s privilege (under their state constitution) to not disclose sources or notes, most have rejected it as have the federal courts under the federal constitution.

          Even so, the whole “never start a fight with a man who buys ink by the barrel” thing makes it a big deal whenever attempts are made to force reporters to disclose their sources, especially when it escalates to contempt proceedings and the reporter gets to spend time as the government’s guest.

  6. Does the Hawaiian Supreme Court apply this same logic to themselves? That is, is it permitted to record court proceedings in Hawaii, including in the Supreme Court.

    I am supportive of the argument they make as it applies to the police, but I wonder if they have the courage of their convictions when it comes to public scrutiny of themselves, as public servants.

    1. Sarah’s Law (“Oh, that’s different!”) applies.

    2. I imagine the answer is that the Supreme Court can set its own rules inside the courtroom and the police can set rules inside the police station…

    3. Yes. If they chose to hold court in a public space then you can record them.

  7. I think that, as a general rule, (I’m not claiming this is the law!) that what you’re entitled to witness, you ought to be entitled to record. The exception would be things you’re entitled to witness, but not to share with others. NDAs, intimate moments, theatrical productions…

    Prohibitions on recording public events are mostly about the government’s desire not to have it’s own misbehavior proven. In the case of recording the police, it’s almost all about that.

  8. Does anybody recall what Kozinski said about this topic?

    And by the way, for clarification: are we pretending that Kozinski didn’t resign? Or are we pretending that Kozinski’s resignation is not noteworthy?

    1. Since this was a state court decision and not a decision of the Ninth Circuit, the answer would be “nothing”.

      What is your fixation with Kozinski and why are you trying to shoehorn it into every article?

      1. I didn’t ask what Kozinski said about this particular case, I asked what he said about this topic (i.e. filming police), which has been an issue before the 9th circuit in the past.

        I’m interested because Kozinski has received a lot of attention from VC bloggers over the years – as much or more than any other judge outside of the SCOTUS, and perhaps more than some individual justices on the SCOTUS. So it seems striking that nobody has anything to say about his abrupt departure from the bench.

        1. I would assume, based on these quotes, he favors the right:

          “It is an open secret long shared by prosecutors, defense lawyers, and judges that perjury is widespread among law enforcement officers ? police lie to avoid letting someone they think is guilty, or they know is guilty, go free.”

          Or, “Nobody likes a game of ‘he said, she said,’ but far worse is the game of ‘we said, he’s dead.’ Sadly, this is too often what we face in police shooting cases like this one.”

        2. Why does it “seem striking”? What’s to say? It doesn’t present any particular legal issues or raise any larger questions. It’s sad but it was inevitable once all those people came forward.

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