Can Police force you to stop recording?

The Supreme Court has yet to rule on a right to record police, but federal appeals courts have ruled that taping law enforcement is protected speech under the First Amendment. Like with other speech, though, the government can apply time, place, and manner restrictions. We asked police law expert Prof. Rachel Harmon to explain the constitutional right to record the police and under what circumstances, if any, can law enforcement require that cameras be put away. Rachel Harmon is a professor of law and the Director for the Center for Criminal Justice at the University of Virginia School of Law. ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ► TalksOnLaw does not provide legal advice. Learn more here: https://www.talksonlaw.com/briefs#about_tol_briefs_tol_is_not_your_lawyer ____________________ Abridged Transcript Host, Joel Cohen (JC): Professor, one of the ways that police abuses have come to light is through the videotaping of police why don't we talk about the laws surrounding that? Threshold question, do we have a constitutional right to video the police? Prof. Rachel Harmon (RH): Almost every court that has addressed this question has said that we do. The Supreme Court has not heard any of these cases yet but every circuit court and most of the state supreme courts that have addressed the question have said, yes, there is a First Amendment right to video record the police activities when they're conducted in public. JC: There's some difference between recording and interfering. How would you draw that line? RH: like other First Amendment activities recording the police is subject to reasonable time place and manner restrictions. Now the cases are turning to the question of well what kind of restrictions are reasonable. So we just like we talked about interfering with the police when they're conducting an arrest. If a citizen with a video camera walks right up to an officer who's conducting an arrest – is within a few feet of that officer – is that a protected First Amendment activity or is that something that police officers can order them back or and conduct an arrest if they fail to follow that order and we still are working on that. The courts haven't yet decided what constitutes interfering with the police such that you can restrict that First Amendment activity. JC: How many videos have you seen where the officer says "excuse me sir, turn off your camera," or "excuse me sir put away your camera." What is that? RH: There are a lot of those. This has been a right that's developing over time, but the technology has outstripped the the law and the legal training that police officers have received. There are times when we might be concerned about videotaping activities even where those activities are in public. So, for example, if you can imagine a homicide scene where the victim's family has not yet been notified, should we allow private individuals to record a picture of the body and post it to instagram before the family is notified? That's a tough question the First Amendment would protect video recording that's not necessarily interfering with the carrying out of the law enforcement duties, but some courts might consider it a reasonable time place a manner restriction to forbid that activity. JC: We've talked about videotaping the police who are engaged in an arrest of someone else, what about when you're at the center, when you're the start of star of this horrific show, do you have the right then to say officer, "I want to turn on my recording device," or "officer, i'd like to videotape this as i'm being arrested to preserve my my rights and to preserve what is actually transpiring." RH: You might think of this as a Fourth Amendment question or a question of state law and arrests, which is what may police officers prohibit you from doing physically during the course of a stop or an arrest? So, a police officer stops you when you're in your car and says put your hands on the steering wheel and that's for officer safety right, so they can see your hands and you couldn't reach for a weapon. Now there are some empirical questions about whether officers are really at risk as much as they sometimes they believe themselves to be, but assuming that you believe that police officers are at risk in these contexts and courts certainly do then they're likely not to treat the First Amendment right as overcoming the police officer's authority to issue those kinds of commands. JC: What if the camera's already on, can they then tell you to stop? RH: yeah so then i think it's purely a First Amendment question and the answer i would assume and again the the case law is sort of thin on this for a variety of reasons but the answer is it should be no.