With cell phone cameras everywhere, it has become common for members of the public to film encounters with the police. Whether the police are behaving professionally or engaged in an unprovoked assault, citizen video provides oversight and potential evidence. But some officers are unhappy with this form of public accountability and have responded by arresting people who try to film them. In an important decision this week, the Seventh Circuit ruled in ACLU v. Alvarez that the public has a First Amendment right to film police.
What law might prohibit filming police? In most cases, the citizen videographer is charged under state wiretapping laws that ban recording a conversation without the consent of both parties. These laws were intended to protect privacy in conversations. But it is absurd to apply these laws to police engaged in official business. Quite simply, police officers on the public payroll conducting public business in a public place have no reasonable expectation of privacy.
The Seventh Circuit agreed. In a thoughtful and well-reasoned decision, a majority of the panel (over a dissent by Judge Posner) applied common sense and rejected Illinois’ claim that police have a privacy right in their public actions. The court reasoned that, since filming is a first step in the creation of speech, laws restricting videography burden speech and press rights. The court ordered that Illinois’ wiretapping law can no longer be applied to the filming of police engaged in official duties in public places.
The Seventh Circuit’s decision follows a similar ruling by the First Circuit. Other courts have also found a First Amendment right to film police. It is encouraging to see the courts get this issue right.
Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in a public fora, we should not expect our actions to be shielded from public observation. Sed quis custodiet ipsos custodies?
That bit of Latin is usually translated as: Who will watch the watchmen?
Photo Credit: Thomas Hawk