Federal appeals court reaffirms right to videorecord, including at traffic stops

From the First Circuit’s decision Friday in Gericke v. Begin (1st Cir. May 24, 2014):

This case raises an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute. Gericke was not brought to trial. She subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights….

Based on Gericke’s version of the facts, we conclude that she was exercising a clearly established First Amendment right when she attempted to film the traffic stop in the absence of a police order to stop filming or leave the area….

In Glik [v. Cunniffe] [a prior First Circuit case -EV], the plaintiff filmed several police officers arresting a young man on the Boston Common…. [W]e held that the Constitution protects the right of individuals to videotape police officers performing their duties in Gericke attempted to videotape Sergeant Kelley during the traffic stop of Hanslin. Thus, the threshold question here is whether the occasion of a traffic stop places Gericke’s attempted filming outside the constitutionally protected right to film police that we discussed in Glik. It does not.

In Glik, we explained that gathering information about government officials in a form that can be readily disseminated “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Protecting that right of information gathering “not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.” Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park. In both instances, the subject of filming is “police carrying out their duties in public.” A traffic stop, no matter the additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not extinguish an individual’s right to film.

This is not to say, however, that an individual’s exercise of the right to film a traffic stop cannot be limited. Indeed, Glik remarked that “a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged.” That observation reflected the Supreme Court’s acknowledgment in Fourth Amendment cases that traffic stops may be “‘especially fraught with danger to police officers’” and thus justify more invasive police action than would be permitted in other settings. Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them.

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure — for example, a command that bystanders disperse — that would incidentally impact an individual’s exercise of the First Amendment right to film. Such an order, even when directed at a person who is filming, may be appropriate for legitimate safety reasons.

However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties. Glik‘s admonition that, “[i]n our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights” will bear upon the reasonableness of any order directed at the First Amendment right to film, whether that order is given during a traffic stop or in some other public setting. We have made clear that “[t]he same restraint demanded of police officers in the face of ‘provocative and challenging’ speech, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.” …

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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