In 2011 and 2012, two circuit courts of appeals held that there exists a positive First Amendment liberty to record police officers in the public performance of their official duties. The opinions represent a swift response to the hundreds of arrests of ordinary citizens for filming police that have received national and local publicity in recent years. After a recitation of the two opinions, Glik v. Cunniffe and ACLU of Illinois v. Alvarez, this Article discusses four unresolved questions that remain: (1) Will future courts that have not addressed the issue be persuaded by Judge Richard A. Posner's dissent in Alvarez?; (2) Which constitutional standard of review will future courts apply to laws that infringe the right?; (3) Is surreptitious recording of police in the public exercise of their duties protected from punishment by the First Amendment, or only open recordation?; and (4) In other jurisdictions, are officers entitled to qualified immunity from civil liability for arrests of recorders of public police activity.
Northern Illinois University Law Review
Alderman, Jesse Harlan
"Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity,"
Northern Illinois University Law Review: Vol. 33:
3, Article 1.
Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485 (2013).