You see police officers making an arrest, and decide to bust out your camera. The officers notice and tell you to stop.
Do you have to listen?
Spoiler alert: no.
Whether documenting everyday interactions with police or large-scale demonstrations, filmmakers are at the forefront of the First Amendment, which has been ruled time and again to include the right to film the police.
According to the recently released NYU First Amendment Watch “A Citizen’s Guide to Recording Police” it’s not full-proof. Here’s what you need to know to exercise your rights without getting in trouble.
You have the right to gather information.
Basically, the United States government recognizes that every citizen is a journalist. As outlined in the Citizen's Guide, the U.S. Supreme Court never ruled specifically on recording police activity, but in Branzburg v. Hayes (1972), the Court held that “without some protection for seeking out the news, freedom of the press could be eviscerated... liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo composition methods.”
A filmmaker might re-write this to read “liberty of the press is the right of the lonely iPhone-ographer just as much as the RED Dragon operator shooting 6K on a Sigma art lens.”
But gear aside, this also means that whether you are working for an actual news outlet, a self-employed documentary filmmaker, or a part-time barista/screenwriter, every citizen has the right to record.
Footage from independent Denver journalist Susan Greene before she was illegally detained and handcuffed for documenting a police arrest.Credit: Colorado Independent
You have the right to record and share video and audio.
Because video is relatively "new technology" in the snail's pace of the laws of the land, the Supreme Court has not specified on video, but the Seventh Court of Appeals ruled on audiovisual recordings in 2012.
Here is the ruling in ACLU v. Alvarez as desribed in the NYU guide:
“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. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected. By way of a simple analogy, banning photography or note taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording.”
You have the right to record secretly.
Police officers are public servants, and what they do is open for public documentation, even if the police are unaware that you are filming them. As the NYU primer outlines, past attempts to characterize filming them as eavesdropping or non-consensual recording have been thwarted by the courts.
A still from seminal police documentary film "Crime + Position" where filmmaker Stephen Maing captured footage of police officers blowing the whistle on illegal quote and profiling practices inside the NYPD.Credit: Interview with Stephen Maing
Where are your rights restricted?
Here’s where it gets a little grey. Police are allowed to ask you to move, but only if it has to do with safety, not because they just want you to stop filming. Much public awareness (and probably court cases) will be needed to iron this out in practice.
You do not have the right to cross police barriers or tell someone to resist arrest.
As described in the NYU guide, police do have the right to order bystanders to disperse for legitimate public safety or law-enforcement reasons that are "content-neutral." (Again, not just because they want you to stop recording.) The guide cites what the Seventh Circuit Court of Appeals said in ACLU v. Alvarez :
“Police have wide discretion to take reasonable steps to protect the public and their own safety, such as keeping people a reasonable distance (e.g., 20 to 30 feet) from an incident, and limiting traffic around the incident. A journalist or bystander who crossed police barriers set up to protect public safety, or at a crime scene in order to get a better angle from which to record, might reasonably be asked to move, as would someone who got in the way of police officers and vehicles moving in and out of the area. Police dealing with an active shooter situation would obviously have even broader discretion. However, as the First Circuit in Glik held, ‘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.’ In King v. Ambs , the U.S. Court of Appeals for the Sixth Circuit ruled in 2008 that free speech rights are not protected when a bystander is interfering with an arrest by instructing a suspect not to cooperate with police.”
You do not have the right to be out past curfew, or get too close to officers.
Although as the guide notes in the end, some ‘curfew’ orders being used across the nation may actually be violating the First Amendment. But it will take court cases to determine this. In the meantime, the NYU guide describes:
“Demonstrations in public places like streets and parks are another situation in which people enjoy a strong First Amendment right to make recordings of police. However, the right to record can be impacted by police actions during a protest—law enforcement may be able to order an individual to stop videotaping under certain circumstances. These might include, for example, if the police issue a broad-scale dispersal order that applies across the board and is not targeted at the person recording the police. It may also include situations in which the person recording is in violation of a generally applicable curfew law, or if the individual recording is too close to an officer arresting a disruptive protester. Some police dispersal orders and curfews, of course, might later be challenged by affected individuals on First Amendment grounds.”
You do not have the right to trespass private property.
If you are entering a private space that you do not have the right to be on, you are considered to be breaking the law and your First Amendment rights won’t apply.
In addition, if you are filming in a privately owned location, you may inadvertently break a contract law. Not as big a deal, but if you want to release a film later through traditional distribution, it's something to keep in mind. For more on these considerations, check out our article: What Are Your Rights as a Documentary Filmmaker? A Primer on Permission.
Police do not have the right to seize or view smartphone recordings.
Every filmmaker is paranoid about losing footage. From streaming to Facebook live via a private group or stuffing SD cards in your underwear, it's something that documentary filmmakers wrestle with abroad where journalism is less protected, and sometimes, at home.
Here, the guide points to the landmark case of Riley v. California (2014), where the U.S. Supreme Court said that the Fourth Amendment prohibits police from seizing a person’s recording device or later searching through its contents.
"The only legal way for police to seize a phone is through an arrest and the only way to access its contents is to acquire a warrant. In writing for a unanimous Court, Chief Justice Roberts said, 'Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.'"
What happens if you are following the law and your First Amendment rights are violated? Unfortunately, like many things in a changing democracy, you may need to fight for your rights. It's what happened to many others before us, and their resulting court cases that paved the rights to free speech that we are using today.
Check out the full guide from NYU's First Amendment Watch, including clickable links to each court case. And check out the following resources from No Film School:
- Best Practices for Filmmakers Documenting the 2020 Demonstrations
- What Are Your Rights as a Documentary Filmmaker? A Primer on Permission
- Filming a Protest? 6 Tips to Capture the Action
Have you exercised your first amendment rights? Been stopped or hassled, or suffered any damaged gear?
And please share your own experiences so we can learn best practices in these times from the filmmaking community.
Header image is of plice body cam footage released by the city of Denver during the wrongful detainment of journalist Susan Greene while she documented them making an arrest.
