TABLE OF CONTENTS INTRODUCTION I. A GLIMPSE OF THE PROBLEM II. CONTEMPORARY FOCUS ON THE RIGHT TO RECORD A. First Amendment Litigation B. Fourteenth Amendment Litigation III. SUBSTANTIVE DUE PROCESS A. Interests Protected by Substantive Due Process 1. Existing Constitutional Rights 2. Egregious Executive Conduct 3. Nontextual Constitutional Rights B. Generality and Scope of the Liberty Interest C. The Nontextual Right Analysis: Establishing the Liberty Interest as Fundamental 1. Private Citizens 2. A Right to Record by Mechanical Device .. a. The Historical Treatment of Mechanical Recording b. Natural Recording--Step 1: Matter Exists in Physical Reality c. Natural Recording--Step 2: Humans Observe Things via the Body d. Natural Recording--Step 3: Humans Record Observations via Memory e. The Tradition of Natural Recording Extends to Mechanical Recording 3. All Things Within Public Space 4. Legally Observable by a Private Citizen D. Subsequent Steps of the Substantive Due Process Analysis 1. The Fundamental Liberty Interest Must Be Substantially Infringed 2. The Infringement Cannot Survive Strict Scrutiny CONCLUSION "Publicity is a great purifier because it sets in action the forces of public opinion, and in this country public opinion controls the courses of the nation." (1)
The 2010-2011 democratic movements in Africa and the Middle East, dubbed the "Arab Spring," have borne witness to peaceful uprisings, bloody civil war, the deaths of civilians and militants, the removal of tyrants from power, and lingering questions regarding the future of these countries. (2) During such times of turmoil, violence, and uncertainty, it is unfortunate--but far from surprising --when there are reports of targeted violence and persecution against those recording these events. (3)
In America, by contrast, those with power employ similar tactics of oppression--but without the pretense of societal chaos as an excuse. Americans seeking to record public life often find themselves victims of government suppression. Police have used physical methods to prevent journalists from recording public protest events across America, such as "Occupy Wall Street." (4) Police have trained their guns on unarmed citizens for recording their activities in public streets. (5) Citizens have been arrested for recording police officers' public conduct. (6) Claims of police destroying recording equipment and erasing recorded material are common. (7) These events are not new, they happen often, and they occur throughout America. (8)
When police subject Americans to such treatment, they act either on their own authority or pursuant to legislative decree.9 The United States currently lacks a judicial check on this kind of suppression. (10) To protect against this assault on the acquisition of knowledge, courts require---and America needs--a properly founded constitutional protection. The Fourteenth Amendment is the source of that protection; through it, every American has a fundamental right to record.
Part I of this Note evaluates the formal intrusion of state authority on the right to record: recording statutes. Part II assesses the current state of litigation regarding the right to record. By the conclusion of these two Parts, this Note will have shown that the government is restraining the right to record and that the current legal paradigms are insufficient to truly provide protection. To this end, Part III engages in a Fourteenth Amendment substantive due process analysis of the right to record, ultimately concluding that such a right is fundamental and therefore protected under substantive due process jurisprudence.
A GLIMPSE OF THE PROBLEM
Although the scope of the constitutional right must be developed,11 the best introduction to the issue is evaluating those statutes directly limiting the proposed right. This starting point establishes one avenue of government intrusion and cultivates a better understanding of the fundamental right. Forty-nine states (12) and the federal government have statutes limiting the ability of private citizens to record. (13) Though the statutes have various names and forms, (14) this Note will refer to this type of statute as a "recording statute." These recording statutes prevent persons from recording (15) electronic, wireless, and
oral communications. (16)
The history giving rise to these statutes is fairly straightforward. In the early years of recording technology, states affirmatively outlawed wiretapping and other means of intercepting private communications. (17) In 1967 the Supreme Court weighed in, declaring in Katz v. United States that "the Fourth Amendment protects people, not places." (18) The Court concluded that the Fourth Amendment extends to what a person attempts to keep private, even in a publicly accessible place. (19) To this end, the Fourth Amendment controlled when the government electronically listened to and recorded a telephone conversation held within a glass, public phone booth. (20) Justice Harlan's concurring opinion ultimately defined Fourth Amendment jurisprudence, (21) setting forth the oft-cited (22) two-part test for what constitutes a governmental search. (23)
In direct response to the Court's holding in Katz, (24) Congress passed the Omnibus Crime Control and Safe Streets Act of 1968. (25) This law was more than a response to Katz--it was an expansion. The Act established a standard regulating more than just government conduct or mere wiretapping. (26) It pertained to both government and private conduct and addressed both the method and substance of recording. (27) In turn, states used this federal legislation as a model for their legislative agendas and reworked their recording statutes. (28) And though these federal and state statutes are not identical, (29) three pertinent elements of a recording statute are relevant to the right to record: consent, privacy, and secrecy. (30) Because each of these elements may vary by jurisdiction, they will be discussed in turn.
Consent. Consent in a recording statute pertains to an agreement by the parties to record the communication. The federal standard requires that at least one party to the communication consent to the recording. (31) Under this standard, the recording party's consent is implied if that party partakes in the communication. (32) To the extent this occurs, this consent requirement is effectively moot because the recording party will always consent to the recording taking place. Thirteen states go beyond the federal standard, at least with respect to some types of recordings, and require that all recorded parties consent to the recording. (33) The recording statutes' consent element can therefore be viewed on a three-point spectrum: all party consent, at least one recorded party's consent, and no consent if the recording party partakes in the recorded communication.
Privacy. With regard to the recording statutes, privacy is the ability to have one's communications kept from others--or at least off a permanent recording. The federal standard establishes that there must be an expectation of privacy attached to the communication for the recording to violate the statute. (34) Nine states set a higher standard by altogether ignoring the privacy expectations and looking to other elements to ascertain if a recording is illegal. (35) This higher standard may prohibit recording communications that lack any expectation of privacy, including conversations of public officials acting in the normal course of their duties. (36)
Secrecy. Secrecy in recording statutes matters only to the extent that the recording activity is disclosed to or readily discoverable by those parties being recorded. The federal standard does not account for secrecy when ascertaining what recordings are unlawful. (37) This lack of a secrecy element indicates that Congress intended to protect private communications (38) with only consent and privacy considerations. The inferential conclusion, then, is that both surreptitious and open recordings may violate the statute. Five states deviate from this standard by prohibiting only those recordings that are surreptitious. (39)
These three elements are important because of their substantive impact on the constitutional right at issue. Consent limits who may be recorded. Privacy limits where the recording may take place and the substance of the recording. Secrecy limits the method of recording. Thus, the statutory landscape is a patchwork of normative decisions regarding which elements, and in what formulation, best protect privacy interests. From a broad procedural view, this is acceptable--even laudable. Legislatures are the arena of policy making, and individual states are allowed to experiment with their social values. (40)
The fault lies in the policymakers' blind reliance on the standard set forth by the higher authority. State legislatures shaped their recording statutes in light of the federal standard, (41) which Congress fashioned to reflect the judicial standard in Katz. (42) But the Katz Court spoke specifically to government actors recording citizens. (43) A Fourth Amendment analysis of government wiretapping (44) produced the focus on people instead of places, (45) as well as the development of a two-step standard to determine constitutionally permissible conduct. (46) The applicability of such Fourth Amendment determinations should thus be limited to government actors; the legality of private conduct is not constrained by Fourth Amendment boundaries. (47) And yet, through these recording statutes, private conduct is regulated by these very Fourth Amendment restraints on government action: consent, privacy, and secrecy. This template for proper government action was inappropriately used as guidance in constraining private conduct.
Moreover, legislative reliance on the Court's Fourth Amendment standards has narrowed the perceived universe of constraints, allowing legislatures to...