Does a person have the right to film police officers in public? Despite clear precedent, the MPP has received the inquiry many times. This is a particularly relevant question relating to developing a “pattern of evidence” that proves motorcycle profiling is occurring. Indeed, video of police profiling motorcyclists was critical to passing the law addressing motorcycle profiling in both Washington State and Maryland.
As Americans, we should all be able to agree that the right to be present in a public place and gather information about an ongoing public concern is fundamental to a free society. This is the essence of political expression, political speech, and a free press, particularly when discussing issues of government accountability.
To deny the right to gather information in a public space would deprive the public knowledge about government abuses. Without this knowledge there is no impetus for advancing police accountability.
A Legal Opinion-Simple and Concise
Millie Thompson, an attorney from Austin involved in both the criminal and civil proceedings stemming from the Waco tragedy that occurred on May 17, 2015, recently discussed the issue on social media. Thompson writes:
For those of you who don’t know:
We have co-equal rights to 1) be present in a public place, 2) gather information on a matter of public concern, and 3) speak on a matter of public concern. Police officers – as public officials and agents of the government – are by definition a matter of public concern.
We therefore have the right to film them.
This is not a privilege. It is a Constitutional right. Period.
Filming the police may not be something you would consider doing. You may also not be the type of grab a picket sign and take to the streets to protest something.
Pick a topic about which you are passionate – whatever it is – it doesn’t have to be something I agree with.
Are you passionate about pro-life? Are you passionate about supporting the troops? Or ‘backing the blue?’ Pick a topic that you believe in. The people who support that issue have the same rights as those who disagree with you. Remember do unto others?
You don’t have to agree with a person’s agenda to defend their First Amendment rights around that agenda.
Why defend it? Because it may be you in the future who wants to speak about an issue. Or – it may be you who wants to gather information about government actors so that you have something interesting to say when you do speak.
Do you believe in government accountability? Don’t people need to know what the government is doing in order to hold them accountable?
What Do The Courts Say?
The right to express information relating to an ongoing public concern often frames discussions concerning the 1st Amendment. Less commonly understood is the equally fundamental right to gather that information. Moreover, in an era of cell phone videos and social media the courts have granted individual citizens the same fundamental right to gather information in public as it has traditionally afforded the credentialed press.
In Buehler v. City of Austin (2014), the federal court concludes that the right to film the police in public derives from “foundational and long-standing principles of constitutional law.”
“A private citizen has the right to assemble in a public forum, receive information on a matter of public concern—such as police officers performing their official duties—and to record that information for the purpose of conveying that information.”
A Word of Caution
Despite the fundamental right to record the police, caution is in order. The right is not absolute and without limits. When filming police take care not to break the law or interfere with an officer’s ability to do their jobs.
“[N]either the First Amendment right to receive speech nor the First Amendment right to gather news is absolute.” Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 928 (5th Cir. 1996). An individual is not permitted to break the law in the process of filming the police in public. For example, an individual cannot interfere with the police’s ability to do their job. “Thus, to the extent that an individual, in exercising his First Amendment right to film police officers as they execute their official duties, violates a valid criminal law, he cannot plausibly argue that his First Amendment right acts as a shield that protects him from criminal liability.”
Buehler v. City of Austin et.al., IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION, MEMORANDUM OPINION AND ORDER, Case A-13-CV-1100 ML, 7/24/2014