Yes, this phone records audio! The case for allowing surreptitious citizen recordings of public police encounters.

• Author: Rodden, Timothy D., Jr.

"Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear." (1)

1. INTRODUCTION

   In today's technologically advanced world, nearly fifty percent of Americans own smartphones, a statistic that increases to sixty-six percent when considering Americans between the ages of twenty-four and thirty-five. (2) This, along with the recording capabilities of smartphones, increases the potential number of police misconduct incidents caught on film. (3) In order to avoid inevitable police misconduct litigation and potential punitive actions by their agencies and departments, police officers discourage citizens from filming them, often implementing creative uses of state and federal laws against civilians who record their activities. (4) Such creative use of these laws raises constitutional concerns regarding civilian recordings of police officers performing their public duties, who for various reasons, do not want their on duty activity recorded and therefore rarely consent to being recorded--especially when potential police misconduct exists. (5) Fortunately, such police activity has recently received scrutiny from federal and state courts, as well as the United States Department of Justice. (6)

   Until recently, courts in states requiring consent of all parties to the recording of a conversation, also known as "unanimous consent states," allowed prosecution of civilian journalists under wiretapping statutes; but the First Circuit and Seventh Circuit upheld the First Amendment right of citizens to record police officers in public. (7) The Department of Justice also recommended that a federal court in Maryland should rule that citizens have a right to record police officers performing their public duties. (8)

   The right to openly record police officers in public is often upheld when challenged under wiretapping statutes in unanimous consent states. (9) Recent decisions extending such rights, however, have declined to recognize a right to surreptitiously record encounters between citizens and police officers. (10) This discrepancy raises First Amendment concerns regarding civilians' constitutional right to record police, gives police the ability to circumvent this right, subjects those who wish to exercise it to potential prosecution, and reduces police accountability for their actions. (11)

   This Note argues in favor of explicitly recognizing the rights of citizens to record police in order to hold them accountable for their public actions and protect citizens from police misconduct and wrongful prosecution. (12) It also discusses the merits of extending the right to record public actions of police officers to surreptitious citizen recordings. (13) Part II discusses the history of the First Amendment as it applies to citizens' recordings of police and state and federal wiretapping statutes as they apply to such recordings. (14) Part III provides a detailed analysis of how the First Amendment protects the rights of citizens to record police and how the use of wiretapping statutes and other criminal charges to prosecute those who do record police over the course of performance of public police duties interferes with that right. (15) Finally, Part IV concludes that the benefits of extending an absolute right to record public police activity, with limited exceptions, outweigh the potential hindrances to the performance of police duties. (16)

2. HISTORY

   1. The First Amendment Application to Citizen Recordings of Public Police

      Encounters

      The First Amendment of the U.S. Constitution prevents the government from enacting laws that interfere with the freedom of speech or of the press, thereby guaranteeing citizens the right to communicate and express their opinions without retaliation from the government. (17) Originally, the First Amendment only applied to the federal government, but in Lovell v. City of Griffin, (18) the Supreme Court recognized the freedoms of speech and of the press as "among the fundamental personal rights and liberties ... protected by the Fourteenth Amendment from invasion by state action." (19) While not all forms of speech or expressive conduct are protected by the First Amendment, the government cannot interfere with speech or expressive conduct unless either the potential for harm or a sufficient government interest exists under the circumstances. (20) The government may not regulate expression based on its content, especially if the expression conveys a person's views or beliefs, or is political in nature; but as an exception, the government may regulate the expression if it incites or is likely to incite "imminent lawless action." (21)

      Content-neutral regulations, however, are sometimes permissible, but the regulations must withstand intermediate constitutional scrutiny. (22) A content-neutral speech restriction will withstand the intermediate scrutiny test set forth in United States v. O 'Brien "if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (23)

      Although a legitimate government interest or purpose may allow regulation of some speech or expression, the regulation must be reasonable. (24) Time, place, and manner restrictions are allowable if the restrictions "are justified without reference to the content of the regulated speech ... narrowly tailored to serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." (25) Government officials can neither arbitrarily enforce an existing regulation or law nor retaliate against those who participate in protected speech or expression because of a personal aversion to its content. (26) While certain government and public officials may have a personal interest in regulating some forms of speech, the private interest of a government agent is not sufficient to permit regulation, and arresting citizens for personal reasons violates their First Amendment rights. (27) Therefore, police officers may only arrest a person for speech or conduct intended to interfere with an investigation or the performance of their duties, such as "fighting words." (28) Vague or overbroad restrictions on speech increase the risk of discriminatory enforcement and deter potentially lawful speech and expression, especially when the penalty for violation of the restriction is criminal rather than civil. (29) Also, the government may only regulate the presentation of speech, rather than its content, and such restrictions on the recording of police officers are not likely "justified without reference to the content of the regulated speech," or "narrowly tailored to serve a significant governmental interest." (30)

      The purpose of the federal Bill of Rights is to minimize the ability of government officials to rule in their own self-interest by:

      [P]rotect[ing] the ability of local governments to monitor and deter federal abuse, ensur[ing] that ordinary citizens [will] participate in the federal administration of justice ... and preserv[ing] the transcendent sovereign right of a majority of the people themselves to alter or abolish government and thereby pronounce the last word on constitutional questions. (31) Consequently, the First Amendment guarantees citizens the right to openly and publicly discuss matters of public concern. (32) It also guarantees that this right is clearly established and logically applies to matters relating to government officials. (33)

      The First Amendment further allows citizens to act in accordance with their personal views and beliefs without fear of retaliation. (34) A person's status as a public employee may affect his First Amendment protections if he is speaking in his official capacity on matters of public concern; however, if the public employee is speaking as a citizen, then the First Amendment protects him as it would anyone else. (35) This distinction exists to encourage "free and open debate" by the public on important matters of public concern--which the activities of police officers certainly are--and to protect citizens from government officials who pursue their own self-interests by holding those in positions of authority accountable for their decisions. (36)

      Encouraging free and open debate through citizens monitoring and reporting the actions of police holds police accountable for their actions and is a favorable public-policy objective. (37) Communities established police forces because of the common opinion that there ought to be people acting as representatives of the society they are members of and therefore responsible to the public they protect and serve. (38) While the purpose of the police has always been to act as "representatives or agents of society," their authorization to use force against citizens puts them in a unique position to abuse their authority and therefore creates the need to subject their actions to additional scrutiny.39 Because of this responsibility and the impact of police actions on public welfare, the right of citizens to monitor and report officers' actions has existed since police forces were first established, as evidenced by newspaper reports of police misconduct as early as the nineteenth century. (40) Police forces became more organized as the forces grew and evolved, and the complaint process became more formal as police oversight committees, funded by the government and staffed by civilians, formed to investigate allegations of police misconduct and recommend appropriate punishment when necessary. (41) Today, police forces continue to be monitored by oversight committees. (42)...