The Right of Private Individuals to Video and Photograph Public Employees

In the era of ubiquitous cell phone cameras and social media usage, public employees need to be mindful of the law as it pertains to the rights of citizens to monitor public employees at work. Private individuals have a right to record public employees, including police officers, in the public discharge of their duties. The First Amendment provides private individuals a constitutionally protected right to photograph or video record public employees. This right, however, is not completely unqualified and may be subject to reasonable time, place, and manner restrictions. In Gilk v. Cunniffe, 655 F.3d 78, (1st Cir. 2011), the U.S. Court of Appeals for the First Circuit addressed the issue of whether there exists a constitutionally protected right to videotape police carrying out their duties in public. The First Circuit answered this question in the affirmative, holding, “Basic First Amendment principles, along with case law from this and other circuits, unambiguously establish that private individuals possess a constitutionally protected right to videotape police carrying out their duties.” Id. at 82. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers. Id. In Gilk, arrestee Simon Gilk was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The Charges against Gilk, which included violations of Massachusetts’s wiretap statute, were subsequently judged baseless and dismissed. Gilk then brought suit under §1983, claiming that his arrest for filming police officers arresting a young man constituted a violation of his rights under the First and Fourth Amendments. The First Circuit held that the officers were not entitled to qualified immunity on the First and Fourth Amendment claims and Gilk was awarded $170,000.
However, the Court in Gilk did state that the right to film police officers is not without limitations and is subject to reasonable time, place, and manner restrictions: “In such traditional spaces [as the Boston Common], the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’ Moreover…the complaint indicates that Gilk ‘filmed the officers from a comfortable remove’ and ‘neither spoke nor molested them in anyway’ (except in directly responding to the officers when they addressed him). Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” Id. at 84. Notably, the right to record public officials is not limited to streets and sidewalks-it includes areas where individuals have a legal right to be present, including an individual’s home or business, and common areas of public and private facilities and buildings.
Therefore, although a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well established liberty safeguarded by the First Amendment, this right is not unqualified. A person may record public police activity unless the person engages in actions that jeopardize the safety of the officer, the suspect, or others in the vicinity, violate the law, or incite others to violate the law. See, e.g., Chaplinsky v. New Hampsire, 315 U.S. 568, 573 (1943)(words “likely to cause are a fight” are not afforded First Amendment Protection); see also, Louisiana ex rel. Gremillion v. National Ass’n for the advancement of Colored People, 366 U.S. 293, 297 (1961)(“Criminal conduct…cannot have shelter in the First Amendment”). Courts have held that speech is not protected by the First Amendment if it amounts to actual obstruction of a police officer’s investigation-for example, by tampering with a witness or persistently engaging an officer who is in midst of his or her duties. See Colten v. Commonwealth of Kentucky, 407 U.S. 104 (1972)(individual’s speech not protected by the First Amendment where individual persistently tried to engage an officer in conversation while the officer was issuing a summons to a third party on a congested roadside and refused to depart the scene after at least eight requests from the officers); King v. Ambs, 519 F.3d 607 (6th Cir. 2008)(individual was not engaged in protected speech when he repeatedly instructed a witness being questioned by a police officer not to respond to questions).
Currently, the following U.S. Courts of Appeals have recognized the First Amendment right to record the police and/or other public officials:

• First Circuit (with jurisdiction over  Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island): see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (“[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”); Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999) (police lacked authority to prohibit citizen from recording commissioners in town hall “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).
• Seventh Circuit (with jurisdiction over Illinois, Indiana, and Wisconsin): see ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”).
• Ninth Circuit (with jurisdiction over Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington): see Fordyce v. City of Seattle, 55 F.3d 436, 438 (9th Cir. 1995) (assuming a First Amendment right to record the police); see also Adkins v. Limtiaco,  _ Fed. App’x _, No. 11-17543, 2013 WL 4046720 (9th Cir. Aug. 12, 2013) (recognizing First Amendment right to photograph police, citing Fordyce).
• Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia): see Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (“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.”).
  

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