The Right to Record

-Submitted by David Drumm (Nal), Guest Blogger

Since the infamous videoing of the Rodney King beating, the power of the video to publicize police brutality, and the subsequent risk of legal and financial repercussions, has led states to criminalize the recording of police. With the proliferation of cell phones cameras and the ability to upload to YouTube, the risk for police is even greater today. If the police have nothing to hide, then there should be no objection to recording them performing their public duties.

Professor Seth F. Kreimer, University of Pennsylvania Law School, argues that image recording is a form of protected “speech” in Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record.

Prof. Kreimer notes that “speech” can incorporate the visual as in the case of American Sign Language gestures. He notes the similarities of video to motion pictures and the Supreme Court case of Joseph Burstyn, Inc v. Wilson (1952), which reversed a conclusion reached four decades earlier and held that:

Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.

In Smith v. City of Cumming (2000), the Court of Appeals for the Eleventh Circuit held that:

As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.

The ruling, however, is not technically binding outside the Eleventh Circuit.

Whenever a person observes the public actions of the police, the human visual and auditory systems perform the exact same functions as a video recording device. The eye incorporates a lens and retina the same as a camera uses a lens and a CCD chip. The human brain processes the image from the retina and the computer inside the camera processes the image from the CCD chip. The human memory stores the data similarly to the memory inside the camera. The principal difference is the objectivity of the camera.

It is this objectivity that the “no record” laws are going after. It is this objectivity that is so dangerous to the illegal activities perpetrated by the bullies with badges. Apparently, it’s legal to record public police activities as long as the recording in not objective.

H/T: Who Will Watch the Watchers?

17 thoughts on “The Right to Record”

  1. Welcome to Miami.

    Witnesses said they were forced to hide video when officers pointed their weapons at them for recording a very suspicious South Beach PD shooting and the SBPD attempted to destroy their phone a.k.a “the evidence”.

  2. jeremy,

    I couldn’t agree more… As I’ve said before on this blog. They record us, then we record them. It’s that simple, as you say.

  3. If I have no expectation of a right to privacy in a public place, then neither do the police. If it is legal for the police to place red light traffic cameras at intersections as an electronic proxy for an officer, i have the same ability to use a video or still camera as a proxy for an eyewitness, plain and simple.

  4. From this to the Rick Scott thread above, back to people with the wrong T shirts being thrown out and harassed at GW Bush rallies, to the propaganda of FOX news, are all of one trend. The denial of varied means of protest and redress to average citizens bespeaks the trend to end any pretense of democracy in this country. In the “newspeak” of today’s America, democracy is being reduced to the freedom to choose one consumer product over another.

  5. I think we all need to incorporate and if my corporation owns that camera or cell phone, the Supreme court won’t touch us! 🙂

  6. I agree with the thrust of your article, though I think your vague comparison and equality between camera and eye weakens it.


    “… The human memory stores the data similarly to the memory inside the camera.” I think this line and those leading up to it, are true only at the grossest 90,000 foot level.

    But I am curious about this:

    “The principal difference is the objectivity of the camera.

    It is this objectivity that the “no record” laws are going after.”

    Can you expand on that? I must be misunderstanding you.

    Are the laws going after:
    1) The act of recording itself, or
    2) The non-transformative characterization of a rote transcription/copying of the scene?

    That is, copyright law seems to acknowledge transformative copying, but not rote copying.

    Are you saying the “no record” laws are using logic like that? I had thought they were just claiming we had no right to record period, not just only the right to record if we are somehow making some transformative alteration to the scene.

    While I agree people have the right to record, it is interesting (to me at least) that recording is not at all the same as speech. It is publishing or broadcasting that is the same as speech. But is recording a right necessary for publishing or broadcasting or speech? Apparently the 11th says it is, and I like that, and I agree.

    I think the 11th’s decision is interesting in how it shows it is dated.

    In 2000, we the people (as opposed to news organizations) had to record.

    In 2011, we can broadcast as well (qik,, ustream,, (eventually youtube)) without the need for recording.

    How would the cases have developed if the defendants had been directly broadcasting on the internet, live, streaming, with no actual recording involved?

    How then could anyone claim that their actions are not speech?

    That’s why I keep on saying that people should install qik, or whatever on their phones, and they should tweet all of their broadcast interactions with the gov’t using tags like #copwatch, #tsawatch, or #whatever.

  7. Blouise – makes me glad I tossed some money into her war chest, thanks for sharing.

    This is an odd position for law enforcement to take given that they now video a lot of their work themselves. They also often claim that if there were video it would exonerate them when accused of wrong doing. Yet it seems they want to be totally in control of the video. I imagine that sometimes police video just goes missing & that is always a shame because I’m sure it would always prove the cops right so they should WANT people to record them.

  8. I agree.

    A similar issue is the right to complain. These include instructions to court clerks not to accept complaints from certain people and attorney regulators who also decide not to accept complaints from certain people.

    I guess you could call this the right to be a whistle blower.

  9. This is a bit off topic (OT):

    This is an email I received from the one good Senator we have here in Ohio (the other one is a favorite of the teabaggers and corporations)… here’s what the good one writes:

    “*** Weekly Update from the Office of Sen. Sherrod Brown ***

    Today’s technology has made it easier for grandparents in Canton to connect with their grandchildren in Chillicothe. Items from a store in Orrville can be purchased in Sharonville and shipped to Circleville.

    But improved technology also brings challenges along with opportunities.

    The Internet and some popular communication devices have made it easier for companies to track consumers and criminals to pursue children.

    Facebook, Google, and other popular websites collect computer users’ personal information. Applications on so-called smartphones – like the Blackberry and iPhone – can also track a caller’s location using Global Positioning System (GPS) technology.

    GPS is available to any private user, including marketing and research firms.

    While marketing companies can use one’s location to create targeted advertisements, stalkers and abusers can use this information for more sinister reasons.

    In fact, a 2009 Department of Justice report found that about one out of every nine domestic violence survivors was stalked or harassed using GPS technology, which is present in many smartphones. Recent reports from the Wall Street Journal to PC World have outlined how GPS is “a stalker’s best friend.”

    Consumers, children, and survivors of stalking and domestic abuse have a right to privacy.

    Leslie from Cincinnati wrote a brief, yet precise letter: “Please sponsor legislation to prevent companies from tracking me when I am online.”

    Ohioans like Leslie should have the right to decide if they want to share their private information. And Ohioans should be able to keep their children safe from online predators.

    Earlier this month, I met with representatives from the Ohio Domestic Violence Network in Cleveland to address a solution to this problem.

    That’s why I am supporting legislation that would protect all users of the Internet and smartphones.

    The Do-Not-Track Online Act of 2011 would give consumers privacy safeguards and includes the added benefit of helping protect people who experience domestic abuse and stalking.

    This bill would protect Internet and smartphone consumers from having their personal information or data shared with businesses, and also help domestic abuse and stalking survivors stay undetected by the criminals who pursue them.

    The Federal Trade Commission (FTC), the agency responsible for administering the “Do Not Call” Registry, would establish standards similar to the “Do Not Call” list to implement the Do-Not-Track database.

    Internet websites and smartphone applications would be prohibited from collecting personal information from individuals who have opted-out by making their Do-Not-Track preference known.

    Both the FTC and state attorneys general would enforce the Do-Not-Track law.

    Simply put, this legislation would prevent Internet and smartphone users from having their location tracked without their knowledge or consent.

    Eileen from Strongsville wrote, “I worry that my searches, purchases, emails and other online activity are being tracked, and that information about me is held by companies I don’t know anything about. I want to be able to control the way my information is collected and used online, and regain some privacy when I surf the web.”

    In addition to concerned Ohioans like Leslie and Eileen, the Ohio Domestic Violence Network, the American Civil Liberties Union, Consumers Union, Consumer Federation of America, the Center for Digital Democracy, and other consumer protection groups support this bill.

    Librarians in Akron, retirees in Zanesville, and students in Cincinnati should have the right to decide if they want to share private information –including the books they buy online, the financial options they research, and the neighborhoods they frequent.

    Modern technology shouldn’t interfere with America’s age-old guarantee to privacy.

    Let’s work together to protect children and survivors of domestic abuse and stalking. This commonsense legislation is an important step in the right direction.

    For more information on my work for Ohio, please click here.

    To opt-out from receiving these messages in the future, please contact my office.

    Sen. Sherrod Brown
    713 Hart Senate Office Bldg.
    Washington, DC 20510

    p (202) 224-2315

    f (202) 228-6321”

  10. Times change and the bullies don’t want to adapt.

    I, personally, view any attempt by any jurisdiction to restrict recording officers as they perform their public duties as a complete admission that the department has been lost to the bullies and has given up on trying to control them.

    I noted with more than just a little interest the article from last week and the video from the police and retired ATF officer about the separatist groups who refuse to acknowledge the authority of the state. It was mentioned more than once that these people like to record officers and I thought … ah ha … trying to build a case to restrict recording by making the fringe element appear to be everybody.

    Kinda of what they did after 9/11 wherein every citizen is now viewed as a potential terrorist.

  11. What makes these types of laws particularly galling is the level of video surveillance the rest of us are subjected to in our ordinary lives.

  12. Nal, thank you for your thoughtful and though-provoking piece. It raises a hypothetical question for me. If a person is panning a crowd with a camera at a public gathering, let’s say a ballgame or street fair. One’s camera is quite likely to scan police personnel providing security for that event. Is that photographing of police considered unlawful or something different? Would the laws you mention ban that as well or is that considered benign, incidental, acceptable? If it is treated differently, it seems we have real problem of double standards. Is it the law that it is acceptable to photograph police activity unless and until they’re arresting, beating, tasing or killing someone and then it’s illegal?

  13. Professor Seth F. Kreimer, University of Pennsylvania Law School, argues that image recording is a form of protected “speech”….

    Then the converse is….the right to privacy….or consent to the recording…. but then think about the ability of the police to place a GPS on your vehicle without a warrant….seems like what good for the goose is ganger material to me….

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