In the past year, two different appeals courts have ruled that recording the actions of police officers in public places is protected by the First Amendment. A new legal analysis argues that the right to record the actions of law enforcement is also protected by the Constitution's due process clause. This right can apply even in non-public settings.

The paper is written by Glenn Reynolds, best known as the author of the Instapundit blog. He has a day job as a law professor at the University of Tennessee, and he co-authored the paper with attorney John Steakley.

Reynolds and Steakley point to two ways that a right to record interactions with law enforcement officials is implicated by the due process protections of the Fifth Amendment. One is as a check against police misconduct.

The paper points to the case of Tiawanda Moore, a woman who went to a police station to file a complaint against a police officer for allegedly assaulting her. The police officer she spoke to, Officer Luis Alejo, tried to talk her out of filing the complaint. In a recording of the conversation taken by Moore, "Alejo was heard explaining to Moore that she might be wasting her time because it was basically her word against that of the patrol officer. Alejo also said they could 'almost guarantee' that the officer would never bother her again if she dropped the complaint."

When the officers at the police station learned she was recording their conversation, they arrested her then charged her with wiretapping. She was acquitted after the jury heard her recording of the conversation.

Criminal trials sometimes pit the word of police officers against the word of defendants concerning incidents that occurred when no witnesses are present. Given that jurors may be more inclined to trust the word of police officers than defendants, access to a recording of an interaction may be the only way for an innocent defendant to demonstrate that an officer's account of an encounter is inaccurate.

Reynolds and Steakley also note that the right to record interactions with public officials could be essential if a defendant is charged with violating the False Statements Act. That makes it a federal crime to lie to a federal official. Once again, if the government mischaracterizes the defendant's statements, a recording of the defendant's actual words can be essential to mounting a defense.

Interestingly, these arguments apply most strongly in private settings, where there might be no witnesses present. So far, challenges to wiretapping laws have focused on recordings taken in public places like the Boston Common. But if the courts accept Reynolds and Steakley's arguments, citizens could gain the right to record their interactions with government officials regardless of where they occur.