Here’s the scenario. A First Amendment “auditor” − someone who purposely films on public property to test the right to record police − walks into the public lobby of your police department and begins recording with his cell phone. The supervising officer verbally confirms with the man that he’s recording, points to a clearly posted sign that prohibits recording and tells the man he must stop. The man refuses, is arrested for “defiant trespass,” and convicted. He appeals, arguing the department’s recording ban violates his First Amendment right to record police in public places.
Who wins?
The U.S. Supreme Court hasn’t squarely ruled on a citizen’s First Amendment right to record police activity in public. But a growing number of federal circuit courts of appeal have found such a right − currently eight of the thirteen. They include the First, Third, Fourth, Fifth, Seventh, Ninth, Tenth and Eleventh circuits.
The right to record police officers in public is not absolute. It may be subject to reasonable “time, place and manner” restrictions. Courts use a three-part test to determine whether any restrictions meet First Amendment standards:
- Restrictions must be content-neutral
- They must be narrowly tailored to serve a significant government interest
- They must leave open alternative channels of communication.
For example, a state court may restrict the public from speaking in a courtroom unless they are an attorney or a witness on the stand.
The beginning scenario was a real case − Pennsylvania vs. Bradley (2020). A state court ruled that the department’s ban on recording in the lobby was a legitimate time, place and manner restriction. There was no disagreement that the ban was content-neutral.
As for the significant government interest served, the court found the ban helped:
- Prevent disclosure of confidential investigative information because some secure area conversations might be overheard in the lobby
- Protect the identities of CIs and UCOs
- Protect the privacy of victims.
Regarding “alternative channels of communication,” the court said the ban “does not bar the use of parchment or quill in the Lobby.” (Whether reference to “parchment or quill” was intended seriously, ironically, or pedantically, the opinion doesn’t reveal.)
A factor that neither party argued, and the court did not address, was that Bradley was “live streaming.” Live streaming is broadcasting video content, recorded in real-time, to a target audience over the internet. Whether live streaming versus simply recording raises other government interests in police lobbies remains an open question.
While a Pennsylvania state court has ruled, citizen recording in public police lobbies remains an unsettled, litigious issue. Consider recent developments in New York. In July of this year, independent journalist SeanPaul Reyes sued the NYPD, which had arrested him for recording in the lobby of a precinct station while waiting to file a complaint. Reyes is also a self-proclaimed First Amendment auditor who has garnered 500,000 subscribers to his YouTube channel.
New York is in the Second Circuit, which hasn’t yet joined those that have held citizens have a right to record police in public places. New York state, however, passed the “Right to Monitor” Act in 2019, providing protection for individuals to record police.
Additionally, after the NYPD banned filming within police precincts, including public areas, the City Council passed the Right to Record Act, which codified an affirmative right to record police officers “acting in their official capacity, with limited exceptions.” Police precincts are not one of the exceptions.
In defense of maintaining its policy, an NYPD spokesperson said recording inside a police station “undermines the privacy of people who interact with the criminal justice system and compromises the integrity of ongoing investigations.”
The lawyer of the national civil rights organization suing on Reyes’ behalf responded that it’s hard to understand why privacy issues would be important within public precinct lobbies, because “people are already exposed to their neighbors and community members.”
Patricia Rodney also filed a federal lawsuit against the NYPD in February 2022 claiming she was subjected to retaliatory violence for engaging in her First Amendment right to record police. Rodney had gone to a Brooklyn precinct to file a report for a missing blood sugar monitor. She declined to stop recording and was arrested. During the arrest, her arm was broken.
Commenting on the First Amendment right to record police, Stephen Solomon, editor of NYU’s First Amendment Watch said, “It’s kind of a delicate balance that depends on the situation. But a blanket restriction typically is not consistent with the First Amendment.”
The issue of whether a right to record police in public spaces includes police lobbies has been heating up since the Bradley decision in 2020. It’s not going away. Police need to think, consult with legal advisors, and have a clear policy for officers that will meet the courts’ time, place and manner requirements for any restrictions on recording.
