The Volokh Conspiracy
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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."