Musing about First Amendment Rights and Recording the Police (2017)Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

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Musing about First Amendment Rights and Recording the Police (2017)

23 February 2017 at 12:03:23 PM

I was reading an interesting case yesterday about whether it is within someone's constitutional rights to record police in a public area. The case is Simon Glik v City of Boston et al . From the case

It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press" and encompasses a range of conduct relating to the gathering and dissemination of information. As the Supreme Court has observed "The First Amendment goes beyond protection of the press and the sefl-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw". .. "It is well established that the Constitutiona protects the right to receive information and ideas. An important corollary to this interest in protecting the stock of public information is that "there is an undoubted right to gather news 'from any source by means within the law'. 

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of government affairs".... Moreover, as the Court has noted, "freedom of expression has particular significance with respect to government because 'it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression'. .. This is particularly 1 of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.  observing that the public has an interest in the responsible exercise of the discretion granted police and prosecutors. Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, see ID at 1034-35 (recognizing a core First Amendment interset in "the dissemination of information relating to alleged governmental misconduct") but also may have a salutary effect on the functioning of government more generally., see Press-Enter. Co v Superior Court... noting that "many governmental processes operate best under public scrutiny". 

In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. Our recognition that the First Amemdment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts. "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". 

It is of no significance that the present case, unlike Iacobucci, and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press. .. the Constitution assures the public and the press equal access once government has opened its doors. "The First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." ... Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status. 

In our society, police officers are expected to endure significant burdens caused by citizens exercise of their First Amendment rights. See City of Houston v Hill. "The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers". Indeed, "the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state". The same restraint demaneded of law enforcement officers in the face of provocative and challenging speech, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

P.S. What about Texas?  

AND ACLU PA -Your rights


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