Government Confiscation of Videotape: Will the First Amendment Save Us?

As Americans, we frequently take for granted our freedoms under the First Amendment. We see images of totalitarian governments in other countries seizing cameras from members of the media and ordinary citizens to cover up abuse and repression. After overcoming an initial feeling of revulsion, we may think to ourselves that could never happen in this country. Don’t be so sure.

In a disturbing trend, state and local governments have invoked state wire tap laws to prosecute individuals who used cell phones to videotape or record the official conduct of police officers in public places. Since 2007, prosecutions have been brought against citizens who videotaped police officers in the course of their duties in public places. In some of these incidents, the videos showed police misconduct. The states of Illinois, Florida, Maryland and Massachusetts have all sought to criminalize the videotaping of police.

In August, the United States Court of Appeals for the First Circuit held that the First Amendment protected a lawyer who was prosecuted in Massachusetts for using his cell phone to videotape three police officers making an arrest in Boston Common. Glik v. Cunniffe, No. 10-1764, Aug. 26, 2011. The United States Court of Appeals for the Seventh Circuit currently has a case before it involving a facial challenge by the ACLU to an Illinois law that permits citizens to videotape or photograph police officers, but prohibits them from recording any audio. ACLU v. Alvarez, No. 11-1286.

The First Circuit opinion in Glik strongly supports the First Amendment rights of citizens to record police officers engaged in official duties in a public place. The Court unanimously held that “Glik’s exercise of his First Amendment Right fell well within in the bounds of the Constitution’s protections” under the First Amendment.

Hopefully the Seventh Circuit follows the First Circuit’s strong affirmation of First Amendment
rights. A decision may be expected in early 2012.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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