Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police

107 Va. L. Rev. Online 166 (2021)

27 Pages Posted: 10 Nov 2022 Last revised: 21 Nov 2022

See all articles by Aidan Coleman

Aidan Coleman

affiliation not provided to SSRN

Katharine M. Janes

United States Court of Appeals for the Second Circuit

Date Written: July 26, 2021

Abstract

Throughout the thirty years between the televised beating of Rodney King and the videotaped murder of George Floyd, recordings of police misconduct have given a face to the perpetrators and victims of police brutality. Given the accessibility of these recordings today over social media, anyone with a smartphone can demand the nation’s attention on one of racial discrimination’s cruelest manifestations.

In spite of their utility to social movements, though, recordings of the police have occupied a legally nebulous space. Federal courts have consistently affirmed the First Amendment’s protection of individuals’ rights to publicly record the police, but they have been unclear as to whether that protection extends to secret recordings. Federal and state wiretap laws can be interpreted to make secret recordings unlawful, and courts have—until late—largely avoided deciding the question.

In December 2020, however, the First Circuit expressly held that individuals have a right to secretly record the police. Project Veritas Action Fund v. Rollins, 982 F.3d 813 (1st Cir. 2020). In its decision, the court affirmed the value of surreptitious recordings and found that the state’s ban on producing such recordings violates individuals’ First Amendment rights. This case comment argues that courts across the country should follow the First Circuit’s model. We maintain that the production of secret recordings serves a critical First Amendment interest by providing social movements with a means to shed light on misconduct and hold power to account. Moreover, we contend that the established constitutionality of surreptitious recordings lends certainty, and therefore protection, to would-be recorders that is unavailable through other alternatives. Finally, we posit that the conventional rationales for circumscribing the right to record the police—such as preserving individuals’ right to privacy and securing public safety—cannot justify a constitutionally meaningful distinction between secret and open recordings, as the First Circuit has affirmed.

Keywords: First Amendment, police and policing

Suggested Citation

Coleman, Aidan and Janes, Katharine M., Caught on Tape: Establishing the Right of Third-Party Bystanders to Secretly Record the Police (July 26, 2021). 107 Va. L. Rev. Online 166 (2021), Available at SSRN: https://ssrn.com/abstract=4260521

Aidan Coleman

affiliation not provided to SSRN

Katharine M. Janes (Contact Author)

United States Court of Appeals for the Second Circuit ( email )

230 Park Ave.
New York, NY 10169
United States

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