Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity

After a wave of high profile arrests of smartphone-toting citizens whose only crime was recording police officers in the exercise of their public duties, constitutional challenges to state wiretapping laws that prohibit such activity has reached two circuit courts of appeals. In 2011, the U.S. Court of Appeals for the First Circuit issued its opinion in Glik v. Cunniffe, holding that not only did the First Amendment right to record police exist, but, despite a paucity of case law, this right was so "self-evident" to be considered of longstanding vintage. In 2012, the U.S. Court of Appeals for the Seventh Circuit followed suit in Alvarez v. ACLU. Like the First Circuit, the Seventh Circuit located the right to record police within the compass of the First Amendment’s protection of the inextricably related constellation of rights to gather, disseminate, and receive information of public importance. The court enjoined enforcement of Illinois’s notably draconian eavesdropping statute as applied to civilian recordation of police officers in the public exercise of their official duties, over the dissent of conservative Judge Richard A. Posner. This Article examines the several unanswered legal questions that remain in the wake of Glik and Alvarez. Though Glik and Alvarez hold sway only within their respective jurisdictions, it seems likely that the right to record public police activity will be treated as universal. Opinions of the Ninth and Eleventh Circuits contain terse recognition dicta of such a First Amendment liberty, while no courts have rendered an opinion to the contrary. Indeed, the U.S. Supreme Court denied a petition for certiorari from the Cook County State’s Attorney’s office in Alvarez. However, there remain questions regarding the definition of the right and its placement in existing First Amendment jurisprudence. Similarly, it has been left unsettled whether the right is one that will be susceptible to vindication in civil rights actions pursuant to 42 U.S.C. § 1983 ("§ 1983"). Part II of this Article provides summaries of the Glik and Alvarez opinions and recites the key arguments in Judge Posner’s dissent. Part III identifies four unanswered questions that remain unsettled in the wake of the Glik and Alvarez holdings. Part III.A. examines whether future courts analyzing the issue will be persuaded by Judge Posner’s dissent and determines that the dissent — while a thought provoking commentary — is too divorced from cognizable First Amendment jurisprudence to be persuasive. Part III.B. asks which constitutional standard of review future courts will apply when laws that interfere with the right to record public police activity are challenged. After analysis of the Seventh Circuit’s justification for application of "intermediate scrutiny," this Part concludes that more substantial constitutional arguments militate in favor of testing these challenges under "strict scrutiny." Part III.C. acknowledges that both Glik and Alvarez only stand for the proposition that "open" recordation of police is safeguarded by the First Amendment. After a brief summary of states that prohibit at least some forms of surreptitious recording of police, Part II.C. proposes that an open-surreptitious dichotomy in the enforcement of wiretapping laws, as applied to recorders of police, is untenable, and criminalization of surreptitious recording of police officers performing their public duties should fail even under the more deferential intermediate scrutiny calculus. Finally, Part III.D. examines whether the right to record police is "clearly established" under the First Amendment, a finding that, if made by future courts, would vitiate qualified immunity from civil liability for government actors who violate the right.