First Amendment Rights to record Public Officers

February 3, 2023

This memorandum addresses the First Amendment rights for individuals to record videos in public places; to record their interaction with government officials; and to record government officials in their official capacity, as a matter of public interest. This memorandum will show, from the jurisprudence of various courts, that the First Amendment rights guarantees the right to make such recordings. 

  1. Is the video recording of police and government officials protected under the First Amendment Rights? Yes, it is protected under both Federal and State law. 

In Basler v. Barron, No. 15-CV-2254, 2016 WL 1672573, at *3 (S.D. Tex. Apr. 27, 2016), the fifth Judicial Circuit held that the gathering of information about government affairs or matters of public concern—including  recording  police  activity—is  protected  by  the  First  Amendment. In that case, Basler had videotaped Deputy Barron’s frightening and unprofessional conduct against a driver. When Deputy Barron realized Basler was recording him, he wrestled Basler to the ground and stopped the recording. Basler filed a case in Court. The court reasoned that preventing the recording of police activity, where the Plaintiff did not interfere, violated the Plaintiff’s First Amendment rights. 

In Fields v. City of Philadelphia, 166 F. Supp. 3d 528, 542 (E.D. Pa. 2016), the Plaintiff attempted to record Philadelphia police officers carrying out official duties in public and was retaliated against. The Plaintiff first filed the case at the District court, which dismissed Plaintiff’s case on the grounds that Plaintiff engaged in conduct only (the act of making a recording) as opposed to expressive conduct (using the recording to criticize the police or otherwise comment on officers’ actions). However, the Court of Appeal overruled the District Court’s decision and held that the First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material. The Court reasoned that the First Amendment Rights go 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. Notably, the Court observed that the public’s creation of such video content also complements the role of the news media.

The Appellate Division of the Superior Court of New Jersey likewise recognized the existence of such a right in Ramos v. Flowers, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012). Ramos, who was a documentary film maker, had several encounters with the New Jersey police, who prevented him from filming the actions of the police when handling a notorious gang. Initially, Ramos filed a Complaint against the police under the New Jersey Civil Rights Act. Consequently, the case was dismissed following a Summary Judgment Motion filed by the Defendant. Ramos appealed the decision. The Appeal court held that Ramos was recording as a matter of public interest and that his recordings were a form of news gathering, which was protected under the New Jersey Constitution. 

  1. Are there any limitations to the First Amendment‘s protection of freedom of speech, expression and of the press? Yes, the rights are limited by time, place and manner restrictions; and qualified immunity. 

Qualified immunity shields state and federal officials from liability under 42 U.S.C. 1983, in conducting their official duties. However, the immunity cannot apply where the official violated a statutory or constitutional right; and the right was clearly established at the time of the challenged conduct. See Basler, No. 15-CV-2254, 2016 WL 1672573, at *3 (S.D. Tex. Apr. 27, 2016). The Court in Basler held that an officer cannot rely on qualified immunity where it would be clear to a reasonable official that his conduct was unlawful in the circumstances. And that the unlawfulness needs to be evident from precedent having similar situations and circumstances. In that regard, the Fifth Circuit in Buehler v. City of Austin/Austin Police Department, et al., 2015 WL 737031, at *9 (No. 15-50155, 2016) “[i]n light of the existing Fifth Circuit precedent and the robust consensus among circuit courts of appeals, the Court concludes that the right to photograph and videotape police officers as they perform their official duties was clearly established at the time of Buehler’s arrests.”

In Turner v. Driver, No. 16-10312 (5th Cir. 2017), the Court held that protecting the right to film the police promotes First Amendment principles. Therefore, the filming of government officials engaged in their duties in a public place fits comfortably within [basic First Amendment] principles. However, like all speech, filming the   police   “may   be   subject   to   reasonable   time,   place,   and   manner   restrictions.” Nevertheless, the Court observed, when officers adopt time, place, and manner restrictions, those restrictions must be “narrowly tailored to serve a significant governmental interest.” (Bold added). It follows; the restrictions must only be applied narrowly to promote justifiable interest of the government. 

The Court in Fields, 166 F. Supp. 3d 528, 542 (E.D. Pa. 2016) also observed that the right to record activities of officers is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” However, according to the court, these restrictions are restrained in public places. Notably, officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves.

In Ramos, Docket No. A-4910-10T3 (N.J. App. Div. Sept. 21, 2012), the Trial Court had dismissed Ramos’ complaint on the ground that the police had qualified immunity, which shielded them from suit. However, at the Appeal stage, the Appellate court held that such immunities do not apply to injunctive remedies. Therefore, qualified immunity should not be used to deny injunctive remedies. Further, the court held that any restrictions on time, manner, and place, should not only be narrowly tailored to suit a significant government’s interest, but should also leave ample opportunity for alternative channels of communication of the information. 

Conclusion

The right to video record the activities of public officers is a constitutionally recognized right under the First Amendment Rights. It follows; so long as the individual does not interfere with the public officers’ activities, the officers are prevented from objecting to such recording. The wealth of jurisprudence from the courts also show that restrictions on such recordings need only be narrowly and strictly applied, and should provide for alternative methods of communicating the information.  

 

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