Is It Legal To Videotape The Police?

In recent years, camera phones with video recording capability have become commonplace.  Social media websites such as Twitter and Facebook now enable us to share what we record quickly and with ease.  These technological advances have led to an exponential increase in filmed police encounters, which in turn has resulted in mainstream media coverage of civil rights abuses that would have otherwise gone unreported.  In other instances, video recordings have served as important evidence in the prosecution of police officers who used force without justification.

Many people believe that the ability to record the police increases transparency and police accountability–that it’s a way to balance the scales of power, so to speak.  However, whether and to what extent we have the right to record the police is a question that our highest courts continue to grapple with.  So, where do things stand right now?

Well, the answer starts with the First Amendment.  The First Amendment provides in relevant part that “Congress shall make no law…abridging the freedom of speech, or of the press…”  Over the past several decades, courts have expanded this right to protect citizens not only from acts of the federal government, but also from acts of state governments and local law enforcement.  Furthermore, The U.S. Supreme Court has clarified that photography and video taping are forms of “speech” that the First Amendment protects.  So at this point it’s fairly well established that the right to record the police has at least some constitutional basis.

But as with most constitutional rights, the right to videotape police is one that is subject to reasonable limitations.  These limitations boil down roughly into two categories.  The first is a limitation on the time, place and manner of the recording.  In essence, most states hold that filming and photographing the police in a public space is fine, provided it is not causing an obstruction or interfering with an investigation.  So, subject to reasonable restrictions on the time, place and manner of the recording that prioritize the interest of law enforcement being able to to their job, recording is permissible.

The second main limitation is the crime scene limitation.  This limitation is really an offshoot of the “time, place and manner” limitation.  Since crime scenes are typically off-limits to the general public, their is no protected right to record the police at the scene of a crime that has already been committed.  The crime scene limitation generally does not apply when there is a legitimate news-gathering or journalistic purpose for the record.

Whether or not you think you’ll ever wind up in the position of needing to videotape or photograph the police, it is very useful to understand how the law applies to these situations.  We hope that this newsletter provides you with a general overview.