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Third Circuit Declares First Amendment Right to Record Police

DEEPLINKS BLOG
July 7, 2017

The First Amendment protects our right to use electronic devices to record on-duty police officers, according to a new ruling by the U.S. Court of Appeals for the Third Circuit in Fields v. Philadelphia. This right extends to anyone with a recording device, journalists and members of the public alike. And this right includes capture of photos, videos, and audio recordings.

EFF filed an amicus brief seeking this ruling. We argued that people routinely use their electronic devices to record and share images and audio, and that this often includes newsworthy recordings of on-duty police officers interacting with members of the public.

The Court’s Reasoning

The Third Circuit began its Fields opinion by framing the right to record in history and policy:

In 1991 George Holliday recorded video of the Los Angeles Police Department officers beating Rodney King and submitted it to the local news. Filming police on the job was rare then but common now. With advances in technology and the widespread ownership of smartphones, civilian recording of police officers is ubiquitous. . . . These recordings have both exposed police misconduct and exonerated officers from errant charges.

The Third Circuit recognized that all five federal appellate courts that previously addressed this issue held that the First Amendment protects the right to record the police.

The court next reasoned that the right to publish recordings depends on the predicate right to make recordings. Specifically:

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. There is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them.

The court also reasoned that the right to record the police is grounded in the First Amendment right “of access to information about their officials’ public activities.” The court explained:

Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

The court identified the many ways that civilian recordings of police activity are beneficial by capturing critical information:

  • “To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately.”
  • “Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media.”
  • “Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture.”
  • “Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.”

Importantly, the court concluded that recordings of on-duty police have “contributed greatly to our national discussion of proper policing.” Among other things, they have “improved professional reporting, as video content generated by witnesses and bystanders has become a common component of news programming.” As a result, recordings have “spurred action at all levels of government to address police misconduct and to protect civil rights.”

Three Cautions

Qualified Immunity

The Third Circuit erred on the issue of “qualified immunity.” This is a legal doctrine that protects government employees from paying money damages for violating the Constitution, if the specific right at issue was not clearly established at the time they violated it. In Fields, the Third Circuit unanimously held that going forward, the First Amendment protects the right to record the police. But the majority held that this right was not clearly established at the time the police officers in the case violated this right.

Judge Nygaard dissented on this point. He persuasively argued that this right was in fact clearly established, given the prior rulings of other appellate courts, the City of Philadelphia’s own policies, and the frequency that people (including police officers themselves) use their mobile devices to make recordings. On the bright side, the Third Circuit remanded the question of municipal liability, so there is still a possibility that the injured parties, whose right to record was disrupted by police, can obtain damages from the city.

Location of Recording

The Third Circuit in Fields sometimes formulated the First Amendment right to record police as existing in “public” places. This is true. But the right also exists in private places. For example, a home owner might record police officers searching their home without a warrant. Also, a complainant about police misconduct, speaking to internal affairs officers inside a police station, might record those officers discouraging her from pressing charges. In such cases, there is a First Amendment right to record on-duty police officers in a private place.

Rather than ask whether the place of recording was public or private, courts should ask whether the subject of recording had a reasonable expectation of privacy. Critically, on-duty police have no such expectation while speaking with civilians, whether they are in a public or private place.

The Fields decision is not to the contrary. Rather, it simply addressed the facts in that case, which concerned civilians recording on-duty police officers who happened to be in public places. Also, the Fields opinion at another point correctly framed the issue as “recording police officers performing their official duties.”

Interference

The court discussed another possible limitation on the right to record the police—whether recording may be subject to “reasonable time, place, and manner restrictions” to ensure that it doesn’t interfere with policy activity. However, this issue was not before the court. It remains to be seen how future courts will address limitations on the First Amendment right to record the police.

Next Steps

The Third Circuit’s Fields decision is an important victory for the right of technology users to record on-duty police officers. But the struggle continues. Across the country, many government officials continue to block members of the public from using their electronic devices to record newsworthy events. EFF will continue to fight for this vital right.

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