Case Law Memorandum on Right to Record
Many jurisdictions in the United States have recognized the right to record public officials in a public place as exercising constitutional rights entrenched in the First Amendment.
- In Smith v. City of Cumming, 212 F. 3d 1332 (11th Cir. 2000), police officers in the City of Cumming, Georgia, prevented James and Barbara Smith from videotaping the actions of police officers on public property. The United States Court of Appeals agreed with them and held that, “As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph police conduct. The First 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.” Plaintiff was recording public officials on public property for the sole purpose of gathering information on what happens at the Department of Motor Vehicles. By erecting signs and warnings that prohibited recording, and subsequent oral warnings from DMV’s employees, Defendants infringed upon Plaintiff’s First Amendment right to gather information. The long delays at DMV are an indication of incompetence of DMV’s employees. Being a public entity, Plaintiff simply wanted to document what usually happens there but he was denied his constitutional right to do so by Defendants.
- In Glik v. Cunniffe, 655 F. 3d 78 (1st Cir. 2011), Glik was arrested for recording police officers as they were arresting a man. He argued that he was simply exercising his rights in the First Amendment. The United States Court of Appeals for the First Circuit agreed with him and agreed as follows: “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 that 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.” The court further held, “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.” Plaintiff had an interest in protecting and promoting the free discussion of how the Department of Motor Vehicles, a government entity, conducts its affairs. In prohibiting Plaintiff from recording their public activities, Defendants did not want it to be made public that there was incompetence, undue delays and gross mismanagement at DMV. This was done in total disregard of Plaintiff’s First Amendment rights. Being a state department, and subsequently a public entity, DMV is not immune to scrutiny and criticism from members of the general public. In trying to avoid scrutiny and criticism, Defendants infringed upon Plaintiff’s First Amendment Rights.
- In American Civil Liberties Union of III. v. Alvarez, 679 F. 3d 583 (7th Cir., 2021), the American Civil Liberties Union of III. (ACLU) sued Cook County’s State Attorney the court for the prosecution of individuals and/or organizations that wanted to monitor police activity to detect misconduct. ACLU argued that those individuals and/or organizations were prosecuted for simply exercising their rights under the First Amendment. The United States Court of Appeals for the 7th circuit concurred with ACLU and agreed that: “The ACLU insists on, and the majority opinion endorses, the right to record conversations to which police officers are parties even if no party consents to the recording, as long as the officers are performing public duties (as distinct from talking with one another on a private topic) in a public place and speaking loudly enough to be heard by a person who doesn’t have special equipment for amplifying sound — in other words, a person standing nearby.” In exercise of First Amendment rights, consent is not required from the party being recorded. Similarly, Plaintiff did not have to obtain consent from Defendants to record what was happening at DMV. This is because DMV employees are public officials who were performing their duties in a public place and were loud enough to be heard by Plaintiff and whose audio was reasonably audible.
- In Kelly v. Borough of Carlisle, 622 F. 3d 248 (3rd Cir., 2010), Kelly was stopped by a police officer. He began recording his surroundings, including the encounter with the officer. Kelly argued that the arrest was an infringement on his First Amendment Rights. The United States Court of Appeals for the 3rd circuit stated as follows: “Moreover, even insofar as it is clearly established, the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions, as long as they are justified without reference to the content of the regulated speech, … are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.” The court established that for public entities to restrict the right to record, they must justify the restrictions without reference to the content of the regulated speech, the restrictions serve a significant government interest, and that the activities for which recording is restricted can be communicated to the public through other channels. Otherwise, it is just an unlawful infringement of the First Amendment. The burden is upon DMV to prove that the restriction was justified, that the restriction serves a significant government interest, and that it had another channel of communicating the happenings inside its premises. DMV has not proved anything. The restriction to record is therefore an unlawful infringement of the First Amendment.
- In Fields v. City of Philadelphia, 862 F. 3d 353 (3rd Cir., 2017), Fields had been arrested for taking photographs of police breaking up a party. The police asked him to leave but he declined. He was arrested and later released with a citation for Obstructing Highway and Other Public Passages. The charge could not be sustained and was eventually dropped. Fields sued for violation of His First Amendment rights. The United States Court of Appeal for the third circuit stated the following in regard to the First Amendment: “If a person’s recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns. In sum, under the First Amendment’s right of access to information the public has the commensurate right to record — photograph, film, or audio record — police officers conducting official police activity in public areas.” It was established that the right to record under the First Amendment may be limited in the event that it prevents public officials from doing their work. Whilst recording the happenings at DMV, Plaintiff did not interfere with the activities of Defendants or other employees at DMV. Therefore, there is no justification for the limitation of Plaintiff’s right to record under the First Amendment.
REASONS WHEREFORE, Plaintiff prays for a Declaration that Defendants infringed upon his First Amendment rights by preventing him from recording their activities at DMV premises.
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