The Volokh Conspiracy
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First Amendment Right to Videorecord TSA Patdown of Your Family Member
From Dyer v. Smith, decided Tuesday by Judge John A. Gibney, Jr. (E.D. Va.):
On June 8, 2019, Dustin Dyer, his husband, and their children traveled through the airport in Richmond, Virginia. When the family entered the TSA checkpoint, TSA agents quickly cleared Dyer and the children. The agents did not, however, clear Dyer's husband. They told Dyer's husband that, per TSA policy, they must perform a pat-down search because he carried infant formula that they could not open for testing.
As the pat-down search began, Dyer turned on his cell phone camera and began recording the search. Dyer stood about ten feet away from the pat-down. After about one minute, TSA Agent Natalie Staton noticed Dyer recording and asked him to stop, saying that his recording impeded the ability of the agent performing the pat-down "to do his job." Dyer did not stop recording and asked Staton, "What are you talking about?" Staton then left and returned with her supervisor, Shirrellia Smith.
Dyer asked Smith if he could record and Smith responded, "No, no recording." Dyer stopped recording. Staton then asked Smith to "order Dyer to delete the recording that he had made so far." Smith ordered Dyer to delete the video while Staton watched. "Dyer deleted the recording from his phone while [Staton] looked at the screen of his cell phone …."
TSA agents then allowed Dyer, his husband, and their children to leave the checkpoint for their flight. Dyer later recovered a copy of the deleted video from his cell phone….
"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.'" Glik v. Cunniffe (1st Cir. 2011). "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."'"
Courts across the country agree that incident to the "right to gather news," citizens have some right to record government officials performing their jobs. The Eleventh and Ninth Circuits recognize a broad right to record matters of public interest. The First Circuit acknowledges a right to record government officials engaged in their duties. Four other circuits [the Third, Fifth, Seventh, and Eighth] recognize a narrower right to record a subset of government officials: law enforcement officers. Considering this growing consensus, this Court finds that the First Amendment protects the right to record government officials performing their duties.
{Recognizing that the First Amendment protects the right to record government officials performing their duties enables "a foremost purpose of the Constitution's guarantee of speech": "to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them."
In addition, when we protect the right to record public officials, we protect against the degradation of various other constitutional rights. This country's racial unrest highlights this principle. Because a cell phone video captured George Floyd's death, the world watched. The world's reaction to this video—and others—sent millions into the streets in protest. Although the racial reckoning continues, this video and the protests it sparked bent "the arc of the moral universe … towards justice." What if the officers had ordered the video that captured George Floyd's death deleted?}
The First Amendment, however, does not offer absolute protection; the government can regulate activity protected by the First Amendment. The extent to which the government can impose such regulation depends on the type of forum in which the protected activity occurs. In a nonpublic forum—the forum at issue in this case—the government may impose "reasonable" regulations that do not arise from "an effort to suppress the speaker's activity due to disagreement with the speaker's view." Int'l Soc'y for Krishna Consciousness, Inc. v. Lee (1992) (holding that the government can impose reasonable restrictions on speech in an airport operated by a public authority). Thus, the government can impose reasonable regulations on the right to record government officials performing their duties in Richmond's airport.
Dyer accuses the defendants of prohibiting him from recording the pat-down search of his husband from about ten feet away and ordering him to delete the video from his cell phone. Dyer says that his recording did not interfere with the screening procedure. Accepting the facts asserted by the plaintiff as true, the defendants' demand that Dyer stop recording and delete the captured video plausibly constitutes an unreasonable restriction on the plaintiff's First Amendment right to record government officials performing their duties. In making these allegations, Dyer sufficiently pleads a First Amendment violation.
The court also held that the right was sufficiently clearly established to overcome qualified immunity, and therefore refused to dismiss Dyer's claim.
