Excerpt from a new paper, “Filming the Watchmen,” from the Heritage Foundation:
Brandy Berning spent the night in a Florida jail because she used a cell phone to film a traffic stop on I-95. George Thompson of Fall River, Massachusetts, claimed that he was verbally abused, arrested, and locked up overnight for filming a profane police officer with a cell phone from his front porch. The officer was across the street in full view and within earshot of anyone who happened to be passing by his home. Most recently, Florida police arrested and charged Lazaro Estrada with obstruction of justice for peacefully filming an arrest with his cell phone on a public street.
Why is this happening? Police are unhappy that people are using their cell phones—which often have video capabilities—to film police conduct. Some state statutes generally prohibit the recording or interception of oral communications unless all parties to the conversation consent. To prevent citizens from gathering and disseminating information about police conduct, police are relying on these statutes to arrest citizens who film police in public, even if those citizens have a right to be present in the locations from which they film.
The question arises: Are such filming and any subsequent publication protected by the First Amendment? If so, what can we do to better secure our rights?
This paper summarizes how federal courts of appeal have treated the filming of police officers in public. It then contends that there exists a First Amendment right not only to film police in such places, subject to reasonable time, place, and manner restrictions, but also to publish the content of those films.