Eagle Forum Legislative Alerts

Monday, July 30, 2012

A Right to Record in Public?

All over the country, ordinary citizens are carrying cell phones and using them to record what they see in public. But some government officials have taken a dislike to that, and some people have even been arrested for recording what they see on city streets.

The media complained about this to the Justice Department, which promptly acted. The Department of Justice issued an extraordinary letter in May declaring that the public has a First Amendment right to video government officials as they discharge their duties. Even more, this letter confirms that if a government agent seizes or destroys someone's recordings, that violates the victim's Fourth Amendment rights unless there was a warrant or court order justifying it.

Even so, there are many reported cases of people being harassed or even arrested merely for recording in public what they see government officials do. The theory behind some of these arrests is that eavesdropping is not permitted unless at least one person subjected to it agrees, and in some states all the persons being taped must agree before the taping become legal.

Many of the charges against citizens are eventually dropped. But remember, the Department of Justice letter emphasized the need to "engender public confidence in our police departments, promote public access to information necessary to hold our governmental officers accountable, and ensure public safety" by videotaping. The Department to Justice letter furthermore said police should "not threaten, intimidate, or otherwise discourage an individual from recording police enforcement activities or intentionally block or obstruct cameras or recording devices." The bottom line is that we won a battle for First Amendment rights, the right to videotape government officials in action. So, folks, carry your cell phone with you. No telling what you might see.

Listen to the radio commentary here:

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