Supreme Court Asked (Again!) To Rule That Recording Cops Is Protected By The 1st Amendment

You'd think this legal question would be settled by now. Smartphones have been in everyday use for more than a decade. Citizen journalists have been part of our daily life ever since the advent of affordable portable cameras. The internet has democratized publication, lowering the barrier between observation and accountability.

Cops hate this. But the law seems pretty much settled: recording public officials performing their public duties in public is an obvious use of First Amendment rights. If cops can declare there's no privacy expectation when you're out in public, they can't suddenly claim being filmed while they are in public is somehow a problem.

But they do. And they have. States with poorly written wiretapping laws have seen them abused for years by cops who don't like being recorded. And anywhere there's no appellate precedent saying otherwise, cops have been rolling the dice on exoneration by arresting people for the crime" of making a permanent record of their public activities.

For some reason, the Supreme Court has yet to deliver a definitive ruling on the matter. This reconciliation is long overdue. It's hardly even a matter of debate. Recording public officials is something that definitely serves the public interest, even if these officials would beg to disagree to the point of having someone arrested.

The Supreme Court is being given another chance to set nationwide precedent and settle this matter completely. Given its reluctance to draw bright lines when it comes to cops, we'll continue to hold our breath and applause until the dispensation arrives.

The Institute for Justice has filed a brief [PDF] siding with Dijon Sharpe in his lawsuit against the Winterville (North Carolina) police department. Sharpe sued the PD years ago (many, many years ago) after his phone was grabbed by cops during a 2014 traffic stop. Sharpe was a passenger in the car. When he tried to film the stop, he was accosted by both officers at the scene:

Officer Helms noticed this activity and attempted to take Sharpe's phone, reaching through Sharpe's open car window. [J.A. 9, 55, 75.] Officer Helms and his partner Officer William Ellis then told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety.

The officers then threatened him with an arrest if he tried to broadcast the recording. Sharpe sued, pointing out these actions were not only arguably unconstitutional but given tacit blessing by PD policy, which apparently made it acceptable to threaten people with arrest for doing nothing more than observing a traffic stop through the lens of their phone camera.

This case arrived at the Fourth Circuit Appeals Court earlier this year. The Fourth Circuit did establish precedent in this case. It stated affirmatively that the act of recording police officers was protected by the First Amendment. Unfortunately, it said there was no way these officers could have known that and granted them qualified immunity.

That's where this appeal to the nation's top court begins. But the Institute of Justice isn't just asking for a reversal of immunity. It wants what will make this reversal possible (although not likely, given the circumstances): an affirmative declaration from the Supreme Court that recording police officers is protected by the Constitution.

The brief opens with a criticism of qualified immunity cases in general that has a direct application to the case at hand. It asks the court to create an unqualified bright line for First Amendment protection that won't force petitioners to play a game of Battleship with federal courts in hopes of sinking future qualified immunity arguments. (Emphasis in the original.)

To overcome the judge-made scavenger hunt of finding clearly established" caselaw, lower courts (and police officers) often find themselves slicing and dicing factual differences to excuse constitutional violations. In right-to-record cases, then, lower courts improperly focus on who is recording, how the video is being recorded, or other immaterial factors that muddle the analysis and result in police officers escaping liability for their constitutional violations.

That's exactly what happened here. Respondents, the district court, and the Fourth Circuit all narrowly focused on how Petitioner recorded the police (through Facebook Live) and who was doing the recording (a passenger) to excuse the officer's retaliation. But under the First Amendment and this Court's qualified immunity precedent, it shouldn't matter what app or device Petitioner used to record the police-or whether Petitioner saved the video to his device, on some cloud-based service, or through a website like Facebook. Nor should it matter whether a journalist, a bystander, a passenger, or anyone else is doing the recording. Instead, a right to record the police is a right to record the police. This case gives the Court the chance to articulate a clean rule at the proper level of generalization.

It's a good argument. But the Supreme Court is the biggest part of the problem stated above, thanks to its ever-expanding absolution of cops via qualified immunity. So, it's not the sort of argument that's going to endear the IJ with the justices.

But endearment be damned! This issue is well past its sell-by date. This court in particular needs to get off its be-robed ass and establish the bright line that seems obvious to everyone who isn't a cop being sued for First Amendment violations. There's barely even a circuit split here. Most appellate courts have made this declaration already. The few holdouts are those that haven't seen a case they like or simply haven't been forced to accept what's plainly obvious because the nation's top court has refused to state what's plainly obvious: there is a First Amendment right to record. That the Supreme Court refuses to engage in this discussion is inexplicable.

Indeed, this Court had the same opportunity to set such a rule in 2021, when it denied a petition that asked whether the right to publicly film the police was clearly established in 2014. Frasier v. Evans, 142 S. Ct. 427 (Nov. 1, 2021) (petition denied). Yet still today, lower courts continue to get this issue wrong because the Court has never articulated the right to record once-and-for all. If the Court passes on the same question again, other circuits, like the Second, Sixth, Eighth, and D.C. Circuits, could use this as an excuse to argue that the right is not clearly established. This Court can forever answer that question here.

Whether or not the Supreme Court ultimately deigns this case to be worth its limited attention span remains to be seen. But the longer the Supreme Court dodges the issue, the more people will be harmed by officers who engage in First Amendment retaliation just because no court precedent has explicitly told them not to.

In the end, lower courts and states will continue to excuse retaliation from police officers when someone records the police until this Court steps in. Even worse, many would-be speakers would just not record in the first place. That chilling effect would diminish government transparency and our protections under the First Amendment.

If the Supreme Court ignores this case, at least four circuits will still allow cops to pretend some recordings are more equal than others. This case involves some really strange assertions by officers - that recording was fine, but broadcasting wasn't - that have been granted credence by two consecutive courts' unwillingness to grapple with the larger issue because they've decided to get bogged down in the (ultimately meaningless) details of this particular recording.

Bright lines are needed, especially if judges are going to trip over small details to ensure they don't have to set a higher bar for police accountability. No court should aspire to this level of incoherence:

For instance, should it matter if a bystander, the target of an investigation, a journalist, a social media influencer, a YouTuber, a victim, a neighbor, a local news outlet, or a passenger is the person doing the recording? Or does it just matter that someone is recording
the police in public? This Court can definitively resolve that question.

Likewise, does it matter if the recording is broadcast live on local television, shot on a professional video camera, stored on an iPhone, instantly shared through Zoom, shared in real-time through WhatsApp or FaceTime (or any other app, including Twitch, Snapchat, or TikTok), captured through a cloud-based service, recorded through Facebook Live, or shot on whatever new and changing recording technology is developed in the coming weeks, months, and years?

Sure, some First Amendment activity can be subject to time-and-place restrictions. But nowhere does this Amendment even suggest its only applies to only certain people or certain forms of publication.

The Supreme Court needs to clean up this mess. Unfortunately, the obviousness of this is so blinding it almost guarantees the Laziest Court in the Land will boot this off the docket without so much as an off-topic blog post from Justice Thomas.