Who Will Watch the Watchers?: Citizens Recording Police Conduct

Abstract

Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit the recording of any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not “clearly established.” This Comment argues that the right to monitor the police and report misconduct is a clearly established, if not fundamental, element of American policing. It also maintains that arresting and prosecuting individuals who record police conduct constitutes an unconstitutional prior restraint on speech. It concludes by arguing that judicial decisions rendering the recording of police unquestionably legal would not undermine police efforts.

Keywords: Wiretapping, Arrest, Police, Prior Restraint, First Amendment, Clearly Established