Though the U.S. Supreme Court has never addressed the issue, a robust consensus in the lower courts holds that you have a First Amendment right to record police officers carrying out their public duties in public spaces. In a too-gradual game of dominos, appeals court after appeals court has signed onto that view, endorsing a result that should be common sense. Last week, the U.S. Court of Appeals for the Tenth Circuit joined the chorus in Irizarry v. Yehia, extending to another six states the full protection of a principle that deserves to be recognized nationwide.
The decision is, thanks to some odd happenstance, the first such opinion from an even-numbered circuit. (The First, Third, Fifth, Seventh, Ninth and Eleventh Circuits were all already on board; Irizarry now gives the right to record the support of a clean majority of the federal courts of appeal, with none dissenting on the other side of the ledger.) The move came in a case that was closely watched because of the Tenth Circuit’s stubborn refusal to answer the same question just last year, which had drawn an unsuccessful bid for Supreme Court review.
Plaintiff Abade Irizarry had better luck. A “Youtube journalist and blogger,” according to the allegations in his complaint, Irizarry was filming a traffic stop when another officer attempted to shut his recording down — first by blocking his view and shining a flashlight into his camera, then by driving his cruiser at Irizarry. Remarkably, a district court concluded that a reasonable officer in the defendant’s position might not have understood that that conduct was unconstitutional.
Thankfully, the Tenth Circuit disagreed. Filming the police, the panel said, sits at the intersection of three bedrock constitutional principles: that the First Amendment exists in the first place to protect the free discussion of public affairs, including public officials; that it protects the right to gather the news in particular; and that the government can’t circumvent limits on its power to regulate speech by preventing the press or public from creating speech in the first place. And the overwhelming weight of authority from other jurisdictions, the court said, should have put a reasonable officer on notice that you can’t steer your patrol vehicle at someone for taping you.
It may seem strange to celebrate — and to track so closely — the extension of a consensus that most everyone already seems to share. But each of these decisions is more than just a persuasive piece of paper, and more than just a victory for a particular plaintiff. They matter critically to the press and public’s practical ability to enforce the right to record. Thanks to the much-reviled doctrine of qualified immunity, law enforcement officers can evade accountability for violating your constitutional rights if the right in question wasn’t “clearly established” at the moment in question. And as Reporters Committee attorneys explained to the Supreme Court last year, the crawl of the question through the lower courts means that a right whose existence no one meaningfully contests remains fragile and under-enforced in too many jurisdictions.
Hopefully, the dominos will continue to fall in the years ahead. And we’ll continue advocating for the right to record the police in the courts that have so far managed to dodge the question.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.