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Is there any good argument against the right to record the cops?

The troubling police behavior in Ferguson, Missouri has caused my social media feeds to erupt with a widespread consensus in favor of a right to record the police — maybe even an obligation on the part of the police to record themselves. (This is in public, in the performance of their official duties.)

I’m in favor of such a right, so I’m happy to see this, but discussions with colleagues have caused me to wonder: Putting aside the constitutional questions, as a policy matter what are the best arguments against a right to record?

Here’s what I’ve come up with:

1, sometimes police officers are doing sensitive tasks that would be undermined by publicity, like meeting with confidential informants.

2, bystanders with cameras might try to get too close to a dangerous situation increasing the risk of accidental collateral injury.

3, being recorded might “overdeter” officers from acting quickly in emergencies, analogous to the overdeterrence arguments made in favor of qualified immunity.

4, immunity from being recorded is important to officers, which is why police unions lobby for it, and we would have to raise their salaries a lot if we got rid of it.

Frankly, all of these strike me as pretty weak. (3 is the best I can come up with, but I’m a qualified immunity skeptic, so the analogy actually cuts the other way for me.) But I wonder if I am not meeting the best arguments. Can others come up with better ones?

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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