This October, former police officer Michael Slager will stand trial for murder in the shooting death of Walter Scott following a daytime traffic stop last year in North Charleston, South Carolina. The critical evidence in the case is a smartphone video captured by a then 23-year-old barber named Feidin Santana as he was walking to work. The video shows Slager shooting the unarmed Scott several times in the back. Santana took the video despite another officer telling him to stop.

Santana’s video is just one example of a citizen using a smartphone to capture alleged police misconduct. Ramsey Orta took the infamous “I can’t breathe” video of Eric Garner being placed in a chokehold by a New York City police officer shortly before Garner’s death. The twin incidents conjure up memories of the 1991 video captured by George Holliday of Los Angeles police officers beating Rodney King.



And in a different but dangerous twist, an April 2015 citizen video shows a burly U.S. marshal in South Gate, California violently smash to the ground the smartphone of another citizen who was simply recording the marshals while standing on a public sidewalk.

The power of smartphones to expose abuses of power by law enforcement officials raises an important question that, as a free speech scholar and director of the Marion B. Brechner First Amendment Project, I’ve studied: Do citizens have a First Amendment right to record police doing their jobs in public places, such as streets, sidewalks and parks?

The U.S. Supreme Court has never answered this question. It has been left to lower courts nationwide to sort out for themselves if such a right to film police exists.