Appeals Court Reaffirms The Public Has The Right To Record The Police, Except For All The Times When It Doesn't

from the leaving-citizens-to-fight-'reasonable'-arrests-for-obstruction dept

Fri, May 30th 2014 1:54pm — Tim Cushing

In what is being touted as a victory for First Amendment rights, the First Circuit Court of Appeals has upheld the right of people to record police officers in public. This is nothing more than a reaffirmation of a right citizens already possessed, something that can hardly be considered a victory.

The problem is that, despite this being made clear on multiple occasions, people are still being arrested for recording police officers. Sometimes it's a bad (and outdated) wiretapping law that gets abused. Sometimes it's other, unrelated laws that are stretched to fit the circumstances, which means those recording officers are hit with charges ranging from interfering with police investigations to criminal mischief, depending on how the interaction goes.

But this ruling has received lots of press, much of which centers on the positive aspects of the ruling -- which, again, must be pointed out only affirms a previously existing right. So, while it's nice to have a higher-level court confirm First Amendment protections, the fact is that this decision was only made necessary by law enforcement's arguments to the contrary.

This ruling, unfortunately, is more about the exceptions than the protections, as Scott Greenfield points out.

[T]he opinion, after reaffirming what was already the law, put a lot more effort into the caveat:

"This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited."

Boom. There it is, the grand right in a few black letters, and then the lengthy explanation detailing how to circumvent and eliminate it. Thanks for the roadmap, bro.

"Indeed, Glik [v. Cunniffe] remarked that 'a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.' That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be ‘especially fraught with danger to police officers’ and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them."

The word “reasonable” is perhaps the most dreaded word in law. First, it is meaningless, left to the sensibilities of judges to decide and a hole big enough to drive a Mack truck through. Second, whenever we see it, we know it’s the opening through which bad things come. Bad, bad things.

"Reasonable" is one of the government's favorite words, one that helps carve out privacy protections and pare back the First Amendment right to record cops. "Reasonable" is the amount of effort claimed to be made by an FOIA department as it turns down your public records request. "Reasonable" is the key word propelling the Terry stop, which in some cities has devolved into stop-and-frisk. "Reasonable" is supposedly an objective standard, but one that is constantly defined subjectively by everyone from the beat cop to the judge presiding over the case.

So, the word "reasonable" jumps in with the First Amendment right so recently confirmed and starts punching holes in the protection.

[A] police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

In plain English, this is what that means.

[Y]ou have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don’t.

Now, we're back where we started, even with a recent district court decision. Citizens have a right that doesn't feel like a right because it can so easily be revoked by an officer reaching a "reasonable conclusion." This means recordings will still be shut down and those operating cameras arrested. The right, as it exists, will most likely be subject to our country's favorite remedy: the court system, a long, expensive process that usually begins with an arrest.

That's not how rights are supposed to work. The exceptions should be few and far between, rather than an incredibly significant part of the whole.

12 2326P 01A (PDF)12 2326P 01A (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: first amendment, first circuit, free speech, police, recording

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 30 May 2014 @ 12:44pm

Not a win for the First at all
A 'Right' that can be revoked is a 'Privilege', not a 'Right', so strip out all the meaningless crud from the ruling and the only thing the court really said was that videotaping police is a privilege, and one that can be revoked at will or whim.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 2:06pm

One way to fix this once and for all...
Congress needs to codify a legal definition of "reasonable" as what the public decides it to be. If the majority of the people feel something is reasonable, then it is. If the majority feel it is not then it is not.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 2:11pm

is there any chance of the courts doing the most important and sensible thing that's needed AND TELLING THE FUCKING COPS!!!
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 2:20pm

Merely filming cannot possibly interfere. Sure someone who is filming can ALSO be interfering but that is a completely separate issue from filming itself. The only way the act of filming could possibly interfere is if it makes the officer nervous to the point of distraction such that he cannot properly perform his duties, in which case, the officer is demonstrating a deficiency in his ability to do the job in the first place.
[ link to this | view in thread ]
The Groove Tiger (profile), 30 May 2014 @ 2:46pm

Re:
That's an interesting observation. You can't interfere by filming from a distance, but you can't really "interfere by filming while kicking the cop in the head constantly". Clearly, the filming isn't the interference.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 3:09pm

Re: One way to fix this once and for all...
If you do it in public, then you have no right to privacy.

If you are performing in an official capacity, you DAMN SURE HAVE NO RIGHT TO PRIVACY!

It is not possible for us to keep checks on corruption if they can keep us in the blind. Privacy is the friend of corruption, but this is only afforded to the citizens, not public official while acting in public capacity.
[ link to this | view in thread ]
zip, 30 May 2014 @ 3:28pm

SWAT victims getting younger and younger
Atlanta SWAT police throw a stun grenade in a baby's crib. Child survives (barely) - may need extensive surgery. (WARNING: graphic pictures)

http://www.wsbtv.com/news/news/local/toddler-critically-burned-during-swat-raid/nf9SJ/?Gxbu Eu

Cycle continues, taxpayers to get raped again.
[ link to this | view in thread ]
Ben (profile), 30 May 2014 @ 4:02pm

Re: Re: One way to fix this once and for all...
If you are performing in an official capacity, you DAMN SURE HAVE NO RIGHT TO PRIVACY!
Except for Police SWAT teams, of course. They're special. It says so right in their name.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 4:08pm

Re: Re: Re: One way to fix this once and for all...
And they are special: if you want to find the biggest bullies, thugs, cowards, liars and assholes on any police force, go straight to the SWAT team. It's a magnet for psychotic power-crazed morons of all descriptions.
[ link to this | view in thread ]
AC, 30 May 2014 @ 6:10pm

Just another reason the USA needs a Civil war, this shit can not keep happening.
[ link to this | view in thread ]
Anonymous Coward, 30 May 2014 @ 7:14pm

" [A] police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

In plain English, this is what that means.

[Y]ou have the constitutional First Amendment right to record police until they tell you to stop, because reasons, at which point you don�t. "

... I disagree. If you run in between cop and other person sticking camera in the eyes, then you are interfering. Your "translation" is manipulation Mr Cushing.
[ link to this | view in thread ]
That One Guy (profile), 30 May 2014 @ 7:45pm

Re:
And when you can provide an example of that actually happening, I'm sure most people would agree that it does indeed count as 'interfering', but simply recording them does not qualify in any reasonable interpretation, and any cop who is that bothered by people watching them on the job is one who doesn't deserve the job.
[ link to this | view in thread ]
nasch (profile), 30 May 2014 @ 9:13pm

Re:
If you run in between cop and other person sticking camera in the eyes, then you are interfering.

That would be the running in between a cop and a subject that's interfering, not the recording.
[ link to this | view in thread ]
orbitalinsertion (profile), 31 May 2014 @ 9:26am

Interfering with police: When photons are absorbed by certain materials, it throws the entire process out of whack. Those photons could have been used for great justice! (For certain values of "justice".)
[ link to this | view in thread ]
Anonymous Coward, 31 May 2014 @ 5:53pm

Re:
You seem to be of the opinion that every instance of recording the police involved running up to a policeman to take close-up shots. Despite there being no such occurrence, or no such occurrence you have cited to beef your argument. Never mind the fact that no one is saying a photographer cannot behave in a way that is interfering, or that the police cannot apprehend such an individual if blatantly interfering.

Sounds like this is just your usual hard-on for insisting that we're all against law enforcement and get a kick out of the police brutalizing citizens for recording their misdeeds from a distance.
[ link to this | view in thread ]
zip, 31 May 2014 @ 10:58pm

6 Cleveland Officers Indicted in Deadly Car Chase
"A police car chase that ended in a schoolyard with two unarmed suspects dying in a hail of 137 bullets is part of a wide-ranging federal investigation into the Cleveland Police Department's use of deadly force and its pursuit policies."

http://abcnews.go.com/US/wireStory/cleveland-police-officers-indicted-large-chase-23935859
[ link to this | view in thread ]
That One Guy (profile), 1 Jun 2014 @ 12:42pm

Re: 6 Cleveland Officers Indicted in Deadly Car Chase
I can see the press release already...

'None of the officers involved in the minor altercation will be charged or investigated, as they all were acting properly according to precinct policy. However, we will be investigating the two suspects, their families and close associates, and will consider pressing charges, for a multitude of offenses, including resisting arrest, theft of police property(bullets in this case), and making the police look bad.'
[ link to this | view in thread ]
Anonymous Coward, 1 Jun 2014 @ 4:44pm

Re:
You're amusing.
[ link to this | view in thread ]
Jack Of Shadows (profile), 1 Jun 2014 @ 9:06pm

QM
As has been demonstrated quite regularly by experimentation, mere observation of individual photons creates an interference pattern. So the ruling and behavior of the officers is physically validated.
[ link to this | view in thread ]
dadtaxi, 2 Jun 2014 @ 7:01am

Re:
'sticking camera in the eyes then you are interfering'

So... is it the 'filming' causing problems, or is it the the 'sticking the camera in the eyes'?

Simple test, if the camera is switched off but then other actions would be called interfering, then its not the filming that's the problem
[ link to this | view in thread ]
Anonymous Coward, 2 Jun 2014 @ 12:39pm

Public Has The Right...
So, you have the right to record the police, as long has you have their permission. Yeah, that's a real right ya got there.
[ link to this | view in thread ]
John Fenderson (profile), 2 Jun 2014 @ 3:40pm

Re: Public Has The Right...
"Freedom is not something that anybody can be given. Freedom is something people take, and people are as free as they want to be" James Baldwin
[ link to this | view in thread ]
Anonymous Coward, 6 Jun 2014 @ 10:44am

Re:
"... I disagree. If you run in between cop and other person sticking camera in the eyes, then you are interfering. Your "translation" is manipulation Mr Cushing."

Except, that's not just filming, now is it?. Your supposition is pure hogwash, Mr. Bootlicker.
[ link to this | view in thread ]