You can use your phone to film the police, even if they tell you not to

Police surround and detain two people in a car on August 13, 2014 in Ferguson, Missouri. (Photo by Scott Olson/Getty Images)

This should be obvious to anyone living in a free society but, it’s worth repeating: citizens have the right to record the public actions of the police. And while some police officers don’t like this fact, they have no right to stop you.

The issue came up again this week in riot-torn Ferguson, Missouri where police reportedly told a crowd of protesters to turn off their cameras following a volley of tear gas and rubber bullets. If this account is true, the police are simply wrong: protesters have the right to film the police.

This is the position of  liberal and conservative scholars, and of appeals courts throughout the United States. As scholar and blogger Eugene Volokh explains of a 2011 First Circuit decision:

Just as the right to speak can be unconstitutionally burdened by restrictions on spending money to speak, or associating in order to speak, it can also be unconstitutionally burdened by restrictions on the gathering of information that is needed to credibly speak.

And the decision is also important. It’s just the latest in a line of circuit court cases, but it’s likely to get a lot of publicity, encourage police departments to respect the public’s rights to openly record police officers in public, and encourage lawyers to challenge violations of these rights.

As with other First Amendment rights, the right to record the police is not absolute: it does not give you a right to interfere with legitimate police business. But overall, you can (and perhaps should) use your phone, or other camera device, to record arrests, crowd control or other police activity.

Nor can police order you to delete the content of your phone. And, if they wish to search it, the Supreme Court made clear this year they need a warrant to do so.

Finally, the legal right to record police is obvious, but so too is the reason for doing so: the camera in the pocket of every citizen can act as a check on police abuses and a troubling trend of police militarization. You can find some links on the law of recording police further below.

Recording Police Officers and Public Officials (Digital Media Law Project, Berkman Center)

Filming the Watchmen: Why the First Amendment Protects Your Right to Film the Police in Public Places (Heritage Foundation)

Your right to record and observe the police (ACLU)

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