Photo courtesy of Gerry Lauzon
UPDATED AUGUST 13, 2019
Article by Daniel A. Levy, Esq.Related: Criminal Law, Can police detain me if they have a search warrant?, What to do if you are pulled over.
Throughout the protests in Ferguson, Missouri, many people have asked whether it is legal to film the police. Indeed, several people were arrested just for recording police actions – like arrests and crowd control – including actual news reporters. Police in Ferguson, as well as in many other cities, argue that it is illegal to tape or photograph police and that it obstructs legitimate police work. A simple Google search reveals that anyone with a blog or Twitter account feels that they are Constitutional law scholars and that the answer is clear. But I wanted to share my legal views on this issue, which is actually not as clear as many people think.
First, there is nothing in the Federal Constitution or any other law that I know of that gives anyone the unfettered right to film the police. Even news reporters are going to be subject to time, place, and manner restrictions. For example, a news reporter cannot expect to jump into a police car and film the police driving a suspect to the police station. Nor can anyone physically obstruct an officer from carrying out their duties. So one important thing to understand is that actual interference with the police is illegal, and could certainly subject the person to arrest.
Law enforcement seems to argue that the mere fact that a person is filming is, on its own, obstructive to their police duties. In New Jersey at least, that statement would be wrong. N.J.S.A. 2C:29-1 defines obstruction of justice, and that definition requires that the actor engage in force, flight, interference, intimidation, or otherwise physically obstructing the police. Merely filming an arrest (possibly to put on Youtube) is not prohibited under New Jersey’s obstruction statute. Nor is it a violation in New Jersey of the anti-wiretapping laws (a tactic used by police in other areas) to film police in public places, since there is no expectation of privacy. Other states may have a very different set of rules.
But the issue gets much more tricky if police have stopped a person from filming, and the person is now seeking redress with the courts. In other words, if police make you stop filming, what can you do about it?
Here, it is important to distinguish between cases where the photographer or videographer is a journalist or merely a bystander. Journalists enjoy special protection under the First Amendment of the US Constitution. In fact, New Jersey’s Constitution is even more protective than the US Constitution. And in this part of the country a “journalist” is a very broad term – it includes independent documentary producers, or even people distributing leaflets and flyers. Those people have a clear Constitutional protection and police actions to curtail journalism could very easily expose the police to civil liability.
However, with mere bystanders who are filming an arrest or traffic stop with a cell phone, the Constitutional protection is not as clear cut. Nothing in the US Constitution or law specifically protects people filming the police. In some parts of the country – but not all – the courts have construed the Constitution to protect bystanders who are filming the police. The Federal Circuits that have clearly established this protection are the 1st, 7th, 9th, and 11th Circuits, which is only about half the country. If a person wants to bring a claim against the police for preventing them from filming or photographing, they would usually have to show that the right to film/photograph is clearly established in that jurisdiction. In New Jersey, New York, and Ferguson, MO for example, this is not the case and claims have been dismissed for that very reason.
As a final aside, it is interesting to point out that in the states where there is no clear protection for bystanders filming police, can the state make a law prohibiting it? In some states, lawmakers have done just that. And in others, police have tried to use anti-wiretapping laws to prosecute people who film them. At some point, the Supreme Court will have to weigh in on this important issue.