First Amendment Right to Record Police in New York?

An update: We discussed in a prior entry Emily Good, who was arrested here in New York State for recording a police officer on video during traffic stop. The charge against her was ultimately dismissed, and now Ms. Good is filing a civil suit:

With Ms. Good’s situation in mind, let’s address a couple of questions regarding citizen interaction with law enforcement:

First of all, in the case of Ms. Good, we know that the State had not given the arresting officer the power to do what he did in the circumstances depicted in the video; but how much power can a state give a police officer?

Second, separate and apart from an officer’s power (or lack of power), what were Ms. Good’s actual rights? Did she have a positive right under the Constitution to do what she was doing? What positive rights might the officer have violated when he arrested her?

The first question, regarding the state’s power to empower an officer, can’t be answered categorically. Arguably, though, New York has already reached the limit with its ‘obstructing’ statute.

In 1987, the US Supreme Court struck down a more draconian law in City of Houston, Tex. v. Hill. That case concerned an ordinance making it “unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.”

Without doubt, that law went about as far as a law can go to make a police officer the emperor of all he surveys, and the Supreme Court concluded that it had gone too far. Quite apart from giving an officer far too much discretion, it was found to violate citizens’ First Amendment right to free speech.

Now, the First Amendment doesn’t protect just the act of speaking or of writing. It also protects “the right to gather information about what officials do on public property, and specifically, a right to record matters of public interest.” This is the principle summed up by Smith v. City of Cumming, an appellate case from the 11th Federal Circuit. (The court in Smith concluded that videotaping police action was covered by the First Amendment.)

This specific issue – First Amendment protection for recording police action on video – hasn’t been decided by the US Supreme Court.

Nor does it appear that the US Court of Appeals for the 2nd Circuit, which includes New York, has spoken on the issue.

A Federal case out of Pennsylvania in 2005 addresses a fact pattern very close to Ms. Good’s: a citizen arrested for videotaping police activity from 20-30 feet away, while standing on property where he had a right to be. In that case, Robinson v. Fetterman, the court found a clear violation of the citizen’s first amendment right. And because he was arrested in violation of his rights, that arrest constituted an unlawful seizure under the Fourth Amendment.

A huge caveat however: Although Robinson has not been overruled, its conclusion has been thrown into question by the US Court of Appeals for the 3rd Circuit. This court has authority over Federal courts in Pennsylvania, and has said in Kelly v. Borough of Carlisle, that the right to make videos of police activity is by no means clearly established.

As noted even in Smith v. City of Cumming, the right to gather information and record government action is “subject to reasonable time, manner and place restrictions.”

“Reasonable time, manner and place” restrictions are most definitely a loophole you could drive a truck through. The court in Kelly expresses particularly strong reservations when it comes to police control during traffic stops (and of course Ms. Good was making a video of a traffic stop). The court quotes language from the Supreme Court’s 2009 opinion in Arizona v. Johnson:”[T]raffic stops are especially fraught with danger to police officers. The risk of harm to both the police and the occupants [of a stopped vehicle] is minimized … if the officers routinely exercise unquestioned command of the situation.”