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

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 Sometimes it's a bad (and outdated) wiretapping law that gets abused.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.

[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.

[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.

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"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.In plain English, this is what that means.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.

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