Beyond Body Cameras: Defending a Robust Right to Record the Police
21 Pages Posted: 7 Apr 2016 Last revised: 3 Sep 2016
Date Written: April 4, 2016
This symposium essay articulates and defends a robust First Amendment right to record the police, up to the point that the act of filming presents a concrete, physical impediment to a police officer or to public safety. To the extent that courts have identified the constitutional values behind the right to record, they have for the most part relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this essay contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.
Keywords: First Amendment, right to record, police accountability
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