War on Cameras

Videorecording Public Servants in Public

Most federal circuit courts have held that people generally have a right to record what police officers do in public places. But how far does that extend?


I think the federal circuit court decisions recognizing a right to videorecord in public places—decisions that have so far dealt with recording police officers—are correct: A right to speak must include some right to gather the information needed to speak (what is often labeled the "right to gather news"), and recording what government officials do in public places is important to be able to speak credibly about it:

It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." "It is … well established that the Constitution protects the right to receive information and ideas." … An important corollary to this interest in protecting the stock of public information is that "[t]here is an undoubted right to gather news 'from any source by means within the law.'"

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering 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." Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because `[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.

But courts haven't figured out how far this extends, especially when we get beyond recording the police. Here is an interesting 2017 opinion (People v. Rivas) from the New York intermediate appellate court; Rivas was convicted of fourth-degree stalking, which punishes anyone who "intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct … is likely to cause reasonable fear of material harm to the physical health, safety or property of such person," and of first-degree harassment, which punishes anyone who "intentionally and repeatedly harasses another person by following such person in or about a public place or places or by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury."

The [government alleges] that defendant resided in a building located on Burns Street and that, on or about November 9, 2010, while the complainant, a mail carrier employed by the United States Postal Service assigned to a mail delivery route in the Rego Park section of Queens, was on her mail route in front of that building, defendant approached her and accused her of not delivering defendant's mail, "stating in sum and substance, you could lose your job for that, you better be careful.'" The [government] further alleges that defendant followed and videotaped the complainant with a video camera on numerous occasions from November 9, 2010 until May 31, 2011, at various locations on her mail route, approximately three or four times per week. Defendant also allegedly posted on an internet website in April 2011 that the complainant was guilty of misconduct in her duties as a postal worker, and included several derogatory statements about the complainant's weight and behavior. On April 27, 2011, a postal inspector went to defendant's home and informed her to cease her conduct and refrain from harassing the complainant. Defendant agreed and told the inspector that she had removed the internet posting. However, defendant continued her activities, particularly on July 25, 2011, when defendant circled the block approximately five times while holding a video camera, and pointed it at the complainant, who was retrieving mail for her route. Defendant also made an obscene gesture toward the complainant.

The [government] also alleges that, on August 1, 2011, defendant pointed a video camera at the complainant, approached the complainant and stated, in sum and substance, "oh it's her again she's stalking us." The [government] further alleges that, on August 8, 2011, while the complainant was in front of the Rego Park post office, she heard a car horn, and then observed defendant looking at her while driving a vehicle. Defendant then stopped in the middle of the road, stared at the complainant, and drove off. Moments later, defendant's vehicle came back and defendant again stared at the complainant. Defendant's activities continued until August 12, 2011, when she was arrested.

The [government] alleges that defendant's "actions caused the complainant to fear for her personal safety and to fear losing her job," and "caused her annoyance and alarm." …

On appeal, defendant contends [among other things] … that she was merely exercising her free speech rights, obtaining information about a public servant performing her official duties, and was merely traveling around her own neighborhood.

Here, the extensive allegations of the factual part of the superseding information were sufficient to render it facially sufficient with respect to the charges of stalking in the fourth degree in violation of Penal Law § 120.45 (1) and harassment in the first degree. It is objectively reasonable that someone following and videotaping another person in a public place dozens of times during a 10-month period knows or should know that the other person would be afraid for her safety and fear physical injury. Defendant was doing more than videotaping a postal employee at work to obtain information, or walking and driving through her neighborhood, and expressing her freedom of speech. The allegations sufficiently established that defendant was engaged in a months' long course of conduct directed against a specific person….

A few possible reactions:

  1. This shows that the First Amendment shouldn't protect videorecording in public places, if there are laws that forbid it.
  2. The First Amendment should protect videorecording of the police in public places, but not of postal workers, because (a) it's important that the public be able to monitor the behavior of the police but not that important that it be able to monitor the behavior of postal workers, (b) the police are likely to feel less threatened by videotaping, because the police are armed, or (c) a combination of both.
  3. The First Amendment should protect videorecording of any public servant (or perhaps any person) in a public place if it's done once or twice, but not if it's done very often.
  4. The First Amendment should protect videorecording of any public servant (or perhaps any person) in a public place if it's done in the place where the recorder happened to be, but not if the recorder is following the subject around.
  5. The First Amendment should protect all videorecording of any public servant (or perhaps any person) in a public place, though perhaps subject to narrow restrictions about, say, how closely the recorder can approach.
  6. Something else.

I'm not sure myself what the right answer is, and I'd love to hear what you folks think.

NEXT: Careful with Filing Sealed Documents

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  1. The First Amendment should protect videorecording of police or any other public servant under any circumstance where private citizens do not have a Fourth Amendment right against being subjected to warrantless videorecording by police or other public servants.

    1. I agree as well.

      (Though I am not sure this case falls in that category, not because of the video recording, but because the video recording appears to be only a part of a course of conduct that may have constituted harassment.)

    2. Exactly.

      Public employees should be held to at least minimal oversight by the public. If they don’t like these terms of employment, they are free to enter into the private work force.

      BTW, a UPS or FEDEX delivery person in public is not especially protected from being recorded in their actions: The USPS is no different.

      Technology, too, offers an interesting perspective. With the proliferation of video door bells with motion activation, ANYONE approaching (say) a homes door is subject to being recorded. Is anyone actually claiming that this is illegal for the letter carrier, but not the UPS driver? If so, why? Likewise, traffic cameras, ATM cameras, etc can all get images of anyone…

      1. Flight,
        I think a lot of the concern many people have is with the behavior that is (or closely resembles) stalking…that of following someone around town. I don’t think anyone (relatively speaking) objects to someone who comes to your front door being unrecorded, then recorded as they get on your property, and then again are not recorded once they leave your property.

        If I can follow my mail carrier around on her route and videotape her while she is doing her official duties, can I do the same to some other person? If no, is that because that other person does not work for the govt? is it because I am taping him doing non-work activities? Will it matter if I only take still photos, rather than video? What what number of images/number of video locations will normally-permitted photography move into harassment?

        It’s an interesting area of law, and one that we’re gonna be faced with in the near future.

        1. But in public, yes, you can follow some one around, video tape them if you want. You cannot obstruct them, threaten them, do anything that actually hurts them.

          Otherwise it would be illegal to accidentally have someone in a frame of any picture you take.

          You may think that the devil is in the details: A law that requires common-sense interpretation is a law that can be abused.

          1. “Otherwise it would be illegal to accidentally have someone in a frame of any picture you take.”

            This is a pointless either-or argument. Constitutionality does not rest on whether a law “can be abused”. It is possible that the law could prohibit stalking but not render doorbell cameras or incidental pictures of strangers the same as stalking. I think you understand this, because of your caveat (“anything that actually hurts them”). I would imagine that even near-first amendment absolutists would draw the line at someone following a postal worker around while threatening to murder them.

            1. Sure. But I would not restrict following postal workers (or anyone else in a public space) around and not threatening them.

  2. A postal worker who performs her duties in public should be fair game for videorecording so that all can see how she is performing her duties. That should apply, of course, only to when she’s on the job, not to recording her activities off the job. And the same should be true for any other public employee who performs services in the public arena.

    1. But government will have more and more cameras everywhere. They will feed into a computer with face recognition, text recognition (license plates) and more recently, gate (walking style) recognition.

      Type in a name, oh there they are.

      If nobody gets public freedom through obscurity, government sure shouldn’t. If the freedom disappears, it should disappear for all.

      1. I don’t think the government’s cameras turn off when a government employee steps into view.

        1. When it’s all perma-recorded for viewing at leisure, that distinction evaporates.

        2. On the other hand, government employees get remarkably forgetful and careless when government cameras record government employees engaged in misconduct. Cameras malfunction, sometimes many cameras malfunction simultaneously. Police officers turn their body cameras on and off to selectively capture footage that they want and exclude footage that is less flattering. Recordings go missing, civilian devices are seized and the footage, miraculously, poof! gone!

          In a sense, government’s cameras really do turn off when a government employee steps into view.

  3. Ok. I’m a Crank. That said, I think that, with rare exceptions, no government employee should have any expectation of being free from surveillance at any time he/she is on the job within the confines of the United States. The exceptions would be persons engaged in legitimately clandestine work, overseen by some legislative body, with that body specifically authorizing each operation, or persons about to engage in military operations outside of the U.S..

    I also think that any time there should be video of an event, and that video has disappeared while in police custody, the legal presumption should be that the police are lying.

    1. “I also think that any time there should be video of an event, and that video has disappeared while in police custody, the legal presumption should be that the police are lying.”

      “We carefully searched the device for the alleged footage and found none. Forensic examination has determined that no recording was made.”

  4. A key comment in the opinion to me is this: “dozens of times during a 10-month period knows or should know that the other person would be afraid for her safety and fear physical injury.”

    The typical video of a police officer arises when some specific encounter with the police is being filmed akin to a police camera filming an roadside encounter. I am not aware of a case, though perhaps there is a lower court opinion on the matter, where someone followed a police officer like this “dozens of times during a 10-month period” as they dealt with their duties. Matching the common example, the comparison would be if someone had a camera on their front porch as the postal employee did their duties.

    The opinion also only partially upheld the prosecutions. I’m open to the idea that public officials should be able to be filmed when they do their job on the public streets though think there is a reasonable argument to be made for “stalking” or some such if someone is filmed continuously over a span of weeks, being followed openly in a car or so forth. At some point, that is simply not the same thing as filming some police encounter.

    1. This sounds reasonable, until you start to think about how government functionaries will exploit the vagueness of it. Say a citizen wants to show a pattern of illegal behavior or slacking off. How is that to be done without following the subject around over an extended period of time. And while following openly might inhibit the behavior one wants to catch, following clandestinely will almost certainly be interpreted as ‘stalking’.

      I think that government employees should simply have to accept that, in return for their (usually) very nice benefits packages, they have to put up with potentially constant surveillance by the public.

      Don’t like that? Find employment elsewhere.

      1. As I said, I’m open to the argument, but it simply is not the common situation that comes up in the typical filming of police encounters that was referenced in the OP.

        Being a on the beat postal worker is no cakewalk (the promotion videos emphasize how hard it is, especially in the heat of summer or something), so I’m not going to make digs at benefit packages. I also think that continuously following people is something that tends to be done by people known as “stalkers” and there will be dangers of that sort of thing happening. Government functionaries aren’t going to be the only ones that game the system, even if this blog is focused on their abuses.

      2. “…following clandestinely will almost certainly be interpreted as ‘stalking’.”

        That strikes me as odd. Following clandestinely would make it virtually impossible for a person to violate the stalking laws in my state. And if the “stalker” is unnoticed by the purported victim, it would definitely defeat several of the elements of the stalking law at issue in the case above. As would the “stalker’s” intention of catching illegal behavior or slacking off by governmental employees.

        Could you expand on why you think clandestine following is stalking? What is your understanding of the elements of the crime of stalking?

    2. I’m open to the idea that public officials should be able to be filmed when they do their job on the public streets though think there is a reasonable argument to be made for “stalking” or some such if someone is filmed continuously over a span of weeks, being followed openly in a car or so forth. At some point, that is simply not the same thing as filming some police encounter.

      The government has absolutely no problem with doing this to you. See license plate scanners, facial recognition software hooked to CCTV, acquisition of cell phone records, etc., all done generally without even a warrant.

      What’s good for the goose is good for the gander.

      1. The government doesn’t follow me around all day long.

        They have certain traffic cameras or the like, but they don’t just follow me around while I do my business for eight hours or something. The acquisition of cell phone records has been addressed by the Supreme Court. A warrant has to be obtained at least in some cases even for cell tower records.

        If the government does monitor people all day long continously for an extended period of time, they should get a warrant.

        1. The government doesn’t follow me around all day long.

          Correction: The government doesn’t have a specific individual follow you around in person all day long.

          Because they don’t have to. They have a computer that can do it for them.

  5. How does this differ from paparazzi mobbing some star-of-the-moment in a public place? And how would it differ if the offender had merely informed the worker that their malfeasance was caught on his (24×7-running) security camera(s)?

    IMO the First Amendment should protect any recording in a public place, subject to some kind of personal space/obstructing free movement restrictions. Note that posting anything of a _particular_ person for commercial purposes (including ad revenue) may run afoul of “personality rights”, though.

    1. “How does this differ from paparazzi mobbing some star-of-the-moment in a public place?”

      It doesn’t. Paparazzi are frequently charged with stalking or harassment.

      “And how would it differ if the offender had merely informed the worker that their malfeasance was caught on his (24×7-running) security camera(s)?”

      Because that would be neither stalking nor harassment.

  6. Are letter carriers “public servants?”

    1. Are ANY officers or employees of government, federal, state, or local “public servants”? Damn few of them. The rest are parasites.

      1. All governmental employees, including elected officials, should be required to wear a distinctive badge of office at all times, during their tenure. So the rest of us can identify them for what they are.

        I propose a piece of hemp rope, about 3/4″ in diameter, tied into a hangman’s noose, with the noose draped around the neck and of sufficient length to reach below the knees.

        This should serve to keep the public servant upright in their morals and attitudes.

      2. DjDiverDan hates veterans and the President.

        1. Project much, do you?

    2. That’s an interesting question. I know that officially the Post Office is to a degree separate, but I don’t know to what degree.

      1. If the USPS is separate then the exact same rules that apply to UPS and/or FEDEX should apply, right?

        And the UPS drivers don’t get special treatment under the law

  7. “It is objectively reasonable that someone following and videotaping another person in a public place dozens of times during a 10-month period knows or should know that the other person would be afraid for her safety and fear physical injury.”

    Says who? And why? So far as I can tell, not once did the Defendant threaten physical violence. And “dozens of times during a 10-month period” works out to a little over twice a month. if we are talking about two dozen, a little over once a week, if we are talking about four dozen. And, so far as I can tell, it is “objectively reasonable” that the judge’s conclusion about fear for safety is based on nothing more than rank speculation.

    1. “It is objectively reasonable that someone following and videotaping another person in a public place dozens of times during a 10-month period knows or should know that the other person would be afraid for her safety and fear physical injury.”

      Actually, it seems like the opposite is the case. If someone follows me around two or three times, I might fear that they are about to do something to me. If someone follows me around dozens of times and they haven’t done anything to me, then it’s not reasonable for me to think that the 37th time is suddenly going to be the time when they take action.

      1. This rule would encourage authorities to arrest anyone on the 2nd or 3rd following rather than the 37th.

        1. I didn’t really propose a “rule” here — it was just a factual observation.

          It may just mean that it’s not really an administrable issue.

  8. I wouldn’t limit the scope of the right to record. I think the tension is best understood as an opportunity to fill a gap in right-to-receive doctrine that speaker-based protections have more fully unpacked: the distinction between speech rights (untrammeled) and attendant conduct (regulable if it doesn’t defeat speech). No less than for conduct that accompanies speech (a raised fist), we need to separate conduct accompanying the receipt of speech from the right to receive it. In this way we don’t need to artificially constrain the scope of the receipt right–we can simply permit regulation and punishment of conduct where appropriate.

    1. Available doctrine provides a few places to start. Best I think are the speech cases that consider different stages in the speech production process (ink, circulation, magazine-boxes, etc.) and recognize that restraints on speech rights may interpose themselves at different points in an idea’s journey from the speaker’s mind to its ultimate medium of expression. Transposed to the right-to-receive, this doctrine suggests that we should not permit regulation or punishment of conduct incidental to the act of receiving speech without appropriate scrutiny–narrowest intrusion, superior government interest, etc. That is where I would have the First Amendment do its work–not drawing lines around officers, or postal employees, or what have you.

      I would not look to the constitutional access right. Filming in public obviates the interests (fair trial, privacy, restricted access to information) applicable in court proceedings. Worse, the critical procedural protections (advance notice to objectors, factual findings in advance of restrictions) simply cannot exist in the context of live filming of unfolding events.

      1. Most importantly, I think we should recognize in the right-to-record cases an echo of prior restraint doctrine. Just as speakers cannot be gagged (however liable they might later be under appropriate scrutiny) the receipt and recording itself cannot be restrained in advance. I believe the doctrine supports treating an affirmative obstruction of the right to record as a prior restraint, because the right to speak necessarily encompasses the right to receive speech. Through this lens, we can then adjust the appropriate penalties that might LATER punish the conduct accompanying the receipt of speech, without watering down a wholesale bar against government interference with the flow of that speech to a public recipient before any process can protect it.

  9. In the case described, the defendant’s ill-advised expressions of animus toward the complainant are what really seem to establish that harassment occurred. So let’s consider a hypothetical example in which as much or more videotaping takes place, but more politely?

    A television or newspaper reporter is given to believe that an employee who mans the desk at the local DMV is not doing his job conscientiously: while people wait in line in front of his desk, he chats with his fellow employees at the water-cooler, reads the morning paper, plays Minecraft, and otherwise neglects his duties. The reporter sets up a video camera in the waiting area, in a place and manner that don’t impede the legitimate uses of the area, and mans it for days at a time, whenever the employee in question is on duty. She does not address hostile comments toward the employee; if asked, she explains that she is working on a story on conditions at the local DMV, but doesn’t make accusations or allegations about any specific person.

    I think we’d be justly opposed to preventing this reporter’s conduct, however uncomfortable it might make the DMV employee(s).

  10. How is the postal worker reasonably in fear of *physical* danger? No threats of physical harm apparently ever made. No weapons ever displayed. Seems obvious defendant had a grudge against the postal worker, but everything said was that postal worker was breaking law/policy and recording and following was consistent with obtaining evidence of such. That should be protected and absolutely shouldn’t be criminalized. The insults and such are also 1A protected, and it seems like this was the heavy hand of government coming down on someone who they didn’t like because of her speech and attempts to catch a postal worker doing wrong.

    1. “How is the postal worker reasonably in fear of *physical* danger?”

      The stalking laws in New York aren’t limited to physical danger.

      “No threats of physical harm apparently ever made. No weapons ever displayed.”

      You can physically threaten someone without displaying a weapon.

  11. There is also the issue of “one party consent” versus “all party consent” as it applies to audio recordings. As we have seen with the recent Trump / Cohen audio recording issues, while it was completely unethical for Cohen, as Trump’s lawyer, to make the recordings without Trump’s knowledge, it was completely legal, because it was done in a “one party consent” state. Not all states have such “one party consent” laws, and in those states what Cohen did would likely have run afoul of wiretapping laws.

    I feel that “one party consent” laws are of great benefit to the “right to gather news”, particularly in cases of gathering evidence of public corruption or other criminal activity. I have been a witness to public officials openly talking to me about their corruption, and their plans to retaliate against me for having made public some of their misdeeds, but I was legally prohibited from recording that evidence because my state does not have “one Party consent” laws, and has ridiculously broad wiretapping laws. I communicated my dilemma to my State Representatives, and got replies saying that they believed the broad “wiretapping” laws were acceptable because they “protected privacy.” While I am generally strongly in favor of privacy, I feel that “all party consent” audio recording laws do much more to protect corrupt public officials (and other criminals) than they do to protect the “privacy” of any law-abiding individual.

    1. I thought that the “one” or “all” party consent restrictions only applied when there was a reasonable expectation of privacy. Each state may be a little different, but I thought that in public places, there is not a reasonable expectation of privacy, so consent is not required.

      To your second point, absolutely! If you read the list of all-party consent states, the correlation to long-held stereotypes of corrupt governments is quite high!

  12. The people who say she had a “reasonable fear” of “physical danger” are the same idiots who are claiming Jacobs was in reasonable fear from Drejka ranting and that McGlockton had a right to attack him.

  13. I’m not sure the videotaping is (or should be) the issue here.

    If you consider the list of unwelcome interactions, do they amount to a violation of the code without the videotaping?

    The danger here would be that we shouldn’t allow stalking to suddenly become “legal” if the accused stalker happens to be using a camera.

  14. I work for USPS. Hate me if you like, but the only reason I applied for the job is because the USPS receives zero taxpayer dollars for its operations. If it did receive taxpayer cash, I would not work there. I don’t see myself as a public servant. I’m an employee of a business that Congress has [regrettable] oversight on because they want free 1st class mail for their propaganda. I despise this.

    There is a difference between cops, gov’t servants & officers (e.g. IRS, Social Security, TSA, DHS, FBI, et al), & USPS carriers. No carrier can take away your liberty, arrest you or make your life burdensome. The only exception is if a carrier withholds or delays your mail, which is a federal offense. Not getting your mail is a massive burden; the penalties for delaying the mail are severe. Carriers have an extraordinarily difficult job in the best of circumstances. How many of you would spend 8 to 12 hours per day in freezing cold or hot weather? It is often very hard work, compounded by utterly inept management, & staff shortages.

    I doubt any letter carrier would be aggrieved by a customer filming them as the carrier delivered the mail to their homes or businesses, but to be followed along their route is excessive. This case is evidently a personal vendetta that serves no purpose other than to harass. If, however, a carrier is breaking the law, and following them was to prove that offense, then I’d be the first to say, “fair play.”

    1. Would you consider it the same if the USPS had a law enforcement arm? Something like The United States Postal Inspection Service?

      You may not be able to take away someone’s liberty, but the USPS sure as hell can.

      Your average government servant (e.g. IRS, Social Security, TSA, DHS, FBI, et al) cannot make arrests either. Only sworn LEOs within those agencies can.

      1. Yes, I would consider the same. I am very much aware of the USPIS, as is any postal employee. But we are discussing letter carriers, not postal inspectors. By all means, do feel free to film harass postal inspectors doing their jobs. Of course, your chances of meeting any postal inspector are practically zero unless you are reporting a crime against a postal service employee, or a crime relating to US Mail, a witness to crime, or a suspect involved in a crime. So you know, filming them might be a bit tough. And I dunno, Unicorn… I certainly cannot recall any incidents of postal inspectors abusing citizens, or violating someone’s constitutional rights, like we see regularly with other law enforcement agencies. So if you do have a specific beef regarding them, let’s hear it, please.

        1. There is a difference between cops, gov’t servants & officers (e.g. IRS, Social Security, TSA, DHS, FBI, et al), & USPS carriers. No carrier can take away your liberty, arrest you or make your life burdensome.

          Why the false equivalency? USPS carriers can’t make arrest, but “gov’t servants” as a whole (e.g. IRS, SSA,. TSA, DHS, FBI, et.al.) can’t either. Only specific people within those organizations can. Why isolate your specific job and compare it to entire agencies?

          Postal carriers can’t make arrests. Neither can a secretary at the FBI.

          1. I’m really unsure what you’re asking here… sorry.

    2. ‘Carriers have an extraordinarily difficult job in the best of circumstances. How many of you would spend 8 to 12 hours per day in freezing cold or hot weather? It is often very hard work, compounded by utterly inept management, & staff shortages.’

      The Combat Infantry called, they said you should try something difficult before claiming it grants some sort of authority.

      And, ‘film harass?’ Other than your emotional attachment to this situation, what gives w/ this nonsense? If the carrier was negligent or worse, one would think a PO worker would want her exposed. But not you.

      1. I served in the Marine Corps from ’89 to ’93. I think I qualify for trying something difficult. Don’t you?

        So in the case above, the carrier was stalked by someone who claimed the carrier was not delivering her mail. The proper recourse for that person should have been to contact the postal inspection service, who would have investigated the claim on its merits, investigated the carrier and sorted it. Instead, the person choose to harass and intimidate the carrier, without any evidence that the carrier was withholding her mail. This isn’t emotional. It’s stating a fact that the carrier was unduly harassed by the aggrieved.

    3. I think if you — like even temp workers at the USPS at holiday times do — swear or affirm to uphold the U.S. Constitution, it is reasonable to call you a public servant. The “taxpayer cash” thing is somewhat silly to me as well. The post office isn’t some purely private affair. It’s a federal crime to attack a postal worker. And, Art. I of the Constitution specifically contains an enumerated power involving postal services. Finally, taxpayer money does in some fashion wind up there. I respect what you do btw.

      1. The USPS also enjoys privileges under the law that private carriers do not. The USPS pension system is government mandated, and insured, their vehicle insurance is government backed, to name but two differences. Their operating costs are guaranteed by the taxpayers.

        UPS or FEDEX would love to operate on a level playing field.

        1. Are you aware that both UPS and FedEx, along with DHL, all have business partnerships with the postal service? Did you know that those three companies cannot deliver every parcel they receive and instead hand over hundreds of thousands of parcels every day to USPS to deliver for them? Did you know that USPS uses FedEx’s air fleet to move a significant portion of its first class, priority and express mail? Were you aware that these business partnerships benefit everyone? The field may not be entirely level given first class letters monopoly, but it’s not tilted entirely in USPS’s favor.

      2. Thank you. It’s a crime to assault anyone. Full stop. Whether federal or state, it hardly matters where the legislation exists. All citizens have the same protection. The law about attacking or robbing a postal worker came about a long, long time ago when criminals regularly robbed postal carriers and post offices. There used to be a death penalty for doing these things… I am curious as to what sort of fashion taxpayers’ money ends up in the postal service. I note Flight-Er-Doc’s comment about insurance. I’m unaware of that. We do have federal health insurance plans and such… perhaps these are what everyone refers to?

  15. If all the defendant did was peaceably follow the postal worker on the route with video recording at a safe distance, this would not seem a particularly difficult case. I would say that recording public performance of official duties can’t contribute to the stalking charge. But following someone around, to the extent it goes being what is reasonably necessary to do the recording, certainly could. That could include the distance from the subject, whether the defendant was aggressive or disruptive of the official duties, and whether there was other evidence about the defendant having the motive to do so other than detecting misconduct (e.g., you just happen to be interested in protecting the public from your ex-wife failing to perform her public duties). And I’d probably put “you kept doing it for a long time even though you didn’t see any evidence of misconduct” in the bucket of things we could infer other motives from, at least if it was following the person around and not stationary recording of your own home.

    I would also separate the target reasonably feeling fear for her personal safety from fear of losing her job. The latter should not serve as the basis of a stalking charge when they are official duties, even if the fear is of unfairly losing one’s job.

  16. Another issue or concern centers around how recordings can be altered. Fake news and false flags have left many of us having a difficult time deciding what is real. The bad news is that will the rapidly growing ability of computers to generate human images this is all about to go to a whole new level. The article below explores this sometimes deceptive and potentially dangerous area of technology ripe for abuse and how it will affect society going forward.


  17. Eugene, your analysis of these issues will always fail to be very convincing as long as you continue to ignore the reality of “harassing” speech. You consistently ignore or “assume away” the relevance of the fact that a person engaged in speech-like conduct may be doing so specifically to harm another person through that conduct. When it comes to sexual harassment, you effectively ask: “Why shouldn’t women have to endure constant unwanted sexual advances from men?” Here, you’re asking: “Why shouldn’t government employees have to endure constant harassment from borderline crazy members of their community?”

    I think, certainly, that a person should be free to record the activities of any public or non-public employee while visible or audible from any place that person is legally entitled to be. If you can see it or hear it, you should be able to record it. Two-party consent laws that restrict this practice and broad construction of laws that enable the police to prohibit this kind of activity, in my view, should be understood to violate the First Amendment.

    But that is not exactly what’s going on here. I see less a concerned citizen than one who has, for whatever reason, taken a particular interest in causing this postal worker to fear for her safety and her job (for no good reason demonstrated here). The person has stepped over the line from merely recording publicly-observable activity to intentionally placing a public employee in fear.

  18. Which of those activities, were they performed by the police, require a warrant? None. Therefore number 5 is the starting point for discussion.

    Why should law enforcement have the ability to record when a private individual shouldn’t?

  19. Do police violate the stalking statute when they engage in surveillance?

    One could argue that the conduct involved simply doesn’t violate the statute, as this condict simply isn’t intended to or doesn’t put people in fear. Professor Volokh focused on the targets of the camera. But why should the people HOLDING the camera matter?

  20. The defendant clearly engaged in a campaign of harassment here. I don’t see this decision eroding a citizens ability to film a public servant at all. I certainly hope it is not interpreted as such.

  21. I don’t see how it’s possible to take the position that (1) freedom of speech includes the right to gather information by recording people, while simultaneously taking the position that (2) freedom of speech does not include the right to avoid being compelled by the government to finance speech advocating positions you abhor.

  22. The answer is “Something Else”. The videotaping is a red herring. Defendants’ action, even absent any taping, are sufficient to constitute harassment and stalking as defined under the relevant New York provisions. The fact that defendant included videotaping as part of her pattern of harassment is neither here nor there. Had defendants actions consisted entirely of persistent and, arguably oppressive, video surveillance, it would present a more interesting question. But this is not that case.

  23. Having some experience with videotaping gov’t agents, see:


    along with a recently filed federal tort claim:


    I have some interest in this topic. My thoughts appear below:

    “It is objectively reasonable that someone following and videotaping another person in a public place dozens of times during a 10-month period knows or should know that the other person would be afraid for her safety and fear physical injury”

    I don’t see any objective reasonableness in the decision because it’s based upon a gov’t employee’s subjective fear. In the absence of the videographer physically interfering with the postal worker’s job or making credible threats, the court’s decision appears objectively unreasonable. The legal principles associated with 18 USC 111 should be the legal standard of review.

    Any gov’t employee operating in the public sphere on the public’s dime is subject to the scrutiny of those they ‘serve’. Whether that scrutiny takes the form of incidental encounters with members of the public or more focused scrutiny from a small number of individuals should be inconsequential to the legal analysis. Anything less than an objective analysis regarding the presence of real physical interference or physical threats provides far too much leeway for abuse by a system already far too unaccountable.

  24. If expectation of privacy is still the loadstar of 4th amendment protection then anyone in a public place can be photographed or video taped. There are certain public places where there is an expectation of privacy, public rest rooms for example. The inside of a vehicle might be another.

    The right to photograph or video tape does not include any right to harass, hound, pester, intimidate, torment, provoke or do anything that would raise the hackles of any reasonable person trying to exercise their right to do their job or to just move about freely. The right to photograph or video tape anyone also does not include the right to use the photograph and video in any way that is prohibited by statute or common law.

    All of the above might be condensed to, “If no harm is done then there is no foul.”

    1. I should have said the the 4th amendment does not apply to non-government actors and that I meant to refer to it only as an analogy.

  25. In addition to the subjective determination that Rivas’s actions created legitimate fear in the postal worker, the court also made a subjective determination that Rivas had no legitimate purpose in her actions, despite the very facts the court used to justify its decision.

    Specifically, the court appears to have ignored the following:

    * Rivas initiated her actions because of an allegation that the postal worker had failed to deliver her mail (how often/to what extent is unknown)

    * Rivas had posted a claim on the internet that the postal worker’s actions amounted to dereliction of duty

    * Rivas only targeted the postal worker within the context of her public employment.

    Identifying & outing public employees who are derelict in their duty is a ‘reasonable purpose’. Whether Rivas had a legitimate claim to this effect is unknown however since the appeals court doesn’t appear to have considered the issue. Rather, the court made an objectively unreasonable determination that individuals have no legitimate purpose in identifying gov’t employees who are derelict in their duties & that a public employee’s subjective claim of fear absent any evidence of physical threats or physical interference amounts to stalking/harassment.

    The postal worker had other remedies available to her if Rivas was making false claims against her. A tort claim regarding false accusations against Rivas would have been a much more appropriate legal vehicle for the postal worker to pursue.

  26. Please note that I’m not condoning the actions of Rivas. If the fact set is accurate and complete, then Rivas showed very poor judgement in the way she chose to address her concerns. I just don’t think her actions rise to the level of criminal activity since many of the state laws defining those terms are far to subjective in nature to be adjudicated in a fair and impartial manner.

    Absent real physical threats or interference, actions similar to those of Rivas’s that may wrongly malign others should be addressed within the boundaries of tort law, not criminal.

  27. 6. Anything which would be stalking if the recording device was off should be stalking if the recording device was on – and anything which would stalking without a recording device should be stalking with such a device.

    1. Or put it this way – if something isn’t stalking when engaged in by a govt employee without a warrant, it isn’t stalking when done *to* a govt employee by a regular citizen.

      1. (I don’t know how that would apply to this case, I presume the courts and jurors will get it right, but maybe they won’t)

  28. It wouldn’t appear that a government employee’s fear of losing their job based on the information someone provides or might provide about them represents the kind of fear that the First Amendment permits regarding as a true threat.

    Otherwise, politicians could legitimately sue reporters who follow them on campaigns or in office for precisely this fear.

    Professor Volokh has taken the position that journalists have no more First Amendment rights than ordinary people. If this is the case, could a court sustain a stalking conviction if the person videotaping the postal employee were a reporter? If not, why exactly would a private citizen threaten in the way a reporter or (as noted in comment above) a police officer doing exactly the same wouldn’t?

    Or did the defendant do something different from a reporter’s or police detective’s surveillance that would make this a true threat and Professor Volokh may possibly have not picked up on?

  29. I still don’t see this as much of a First Amendment issue (if it was, then why wouldn’t videotaping even in private areas be protected from government punishment?) but rather as a governmental power issue. Where does government get the power to ban this in the first place? By making a First Amendment claim, you are effectively conceding that the government does have that general power and only the prohibitions in the Bill of Rights prevent its exercise.

  30. The First Amendment is not the (main) source for the right to investigate wrongdoing, including by public officials, It comes from the Ninth Amendment right to do one’s duty, and we all have the militia duty to help defend the community and enforce the law.

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