Privacy and the Right to Record

77 Pages Posted: 4 Mar 2017 Last revised: 8 Mar 2017

Margot E. Kaminski

Ohio State University (OSU) - Michael E. Moritz College of Law; Yale University - Yale Information Society Project; Yale University - Law School

Date Written: March 3, 2017

Abstract

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record.

The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s behavior to disrupt the behavior of others. That interest, importantly, will not always justify suppressing recording, but it can be distinguished from an impermissible government interest in suppressing speech. Moreover, the government’s interest in managing the qualities of a particular environment can itself be speech-protective—and has been recognized as such.

As technological development brings more recording devices into the physical world, courts will need to determine how to balance speech interests and privacy. First Amendment doctrine, often blunt in nature, is in fact, and perhaps surprisingly, equipped to address the nuances of this challenge. Regulating recording governs a moment of interaction in physical space, not a downstream editorial decision that may cause dignitary harms. Regulation, thus, does not break with the U.S. free speech tradition of protecting the publication and distribution of information.

Keywords: Privacy, First Amendment, Free Speech, Right to Record, Drones, License Plate Readers

Suggested Citation

Kaminski, Margot E., Privacy and the Right to Record (March 3, 2017). Boston University Law Review, Vol. 97, No. 167, 2017; Ohio State Public Law Working Paper No. 381. Available at SSRN: https://ssrn.com/abstract=2927001

Margot E. Kaminski (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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