Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity
Alderman, Jesse Harlan
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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.