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?