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To Address Any Confusion as to Federal Law and Policy and Why Videoing in a Post Office is 100% Lawful and Legal

Remember the First Amendment –
So Smile . . . You May Be on Candid Camera
Tim Miller


 

Attorney Advisor / Senior Instructor
Office of Chief Counsel / Legal Division
Federal Law Enforcement Training Center
Glynco, Georgia
The Candid Camera television program began with a little jingle, “When the least expected,
you’re elected, you’re the star today …” The program caught ordinary people on camera in
some of life’s less than ordinary, embarrassing situations. Candid Camera was funny, and the
stars seemed to take it in good fun. The same has not always been true for police officers
caught on camera by private citizens. Officers have seized recording devices and even
arrested the people recording them. But their embarrassment was not so much being caught
on the camera; it was the subsequent lawsuit for civil rights violations.1
To start, the First Amendment provides that Congress shall make no law abridging the
freedom of speech or of the press.2
Freedom of expression prohibits the government from
limiting the pot of information from which the public may draw. And anyone – a professional
journalist or a citizen journalist with no training – may add to the pot.3
Notably, the
assassination of President John F. Kennedy and the beating of Rodney King were recorded by
bystanders. More and more, scenes on the evening news are coming from people with a ready
cell phone or digital camera who just happened to be there.
The right to make audiovisual recordings of public officials is highest in public forums.
Public forums are public places like city streets, sidewalks, and parks – – places where the
people have traditionally exercised First Amendment freedoms.4
The right could be described
this way: The people have a qualified right to openly record police officers performing their
1 Constitutional tort claims may be brought against a law enforcement officer under two separate, but related,
bases. Title 42 U.S.C. § 1983 allows plaintiffs to sue public officials acting under color of state [local, territorial,
or District of Columbia] law. Section 1983 was enacted in April 1871 in the wake of the American Civil War as
part of the Civil Rights Act of that era. Noticeably absent was any mention of federal officials – acting under
color of federal law. Federal officials remained immune from suit under § 1983 until June 1971. Just a couple
of months after § 1983’s 100th Anniversary, the Supreme Court decided Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Court created an analogy to § 1983. The so called Bivens
Analogy allows plaintiffs to sue federal officials, acting under color of federal law, for certain Constitutional
violations.
2 The First Amendment provides in part that “Congress shall make no law … abridging the freedom of speech, or
the press…” Title 42 U.S.C. § 1983 is authority to sue state and local officers for First Amendment violations.
See for example Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)(city police officers were sued under §1983 after the
plaintiff was arrested for attempting to make an audio visual recording of a traffic stop) and Glik v. Cunniffe, 655
F.3d 78 (1st Cir. 2011)(city police officers were similarly sued after the plaintiff was arrested for recording an
officer effecting an arrest in a public park.) The Supreme Court has assumed, without deciding, that the Bivens
Analogy allows First Amendment claims against federal officers. See Wood v. Moss, 572 U.S. ___, 134 S. Ct.
2056, 2066 (2014).
3 The First Amendment extends further than the text’s proscription on laws abridging the freedom of speech, or
of the press, and encompasses a range of conduct related to the gathering and dissemination of information. See
Gericke, 753 F.3d at 7 (the Constitution protects the right of individuals to videotape police officers performing
their duties in public); ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012)(audio and audio visual recordings are
media of expression commonly used for the preservation and dissemination of information and are included
within the free speech and free press guaranty); and, Glik, 655 F.3d at 82. 4 See McCullen v. Coakley, 573 U.S. ___, 134 S. Ct. 2518 (2014).
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duties in public forums when the officers are speaking at a volume audible to the unassisted
ear. One example might be recording a police officer effecting an arrest in a public park.
Another might be filming a traffic stop from a sidewalk.5

If someone is in a public forum, he probably has a right to record the sights and sounds
around him. That would include a citizen standing on a public sidewalk and photographing
the exterior of a government building. As a result, an officer who seizes the recording device
of a person filming the exterior of a federal courthouse may face the same predicament as
another officer who seizes the recording device of someone filming the officer.6
But I don’t like it… No doubt, the officers involved in these lawsuits did not like it, either.
Bystanders videotaping a traffic stop or arrest may be distracting. And after the bombing of
the Alfred P. Murrah Federal Building in Oklahoma City and other terrorist attacks, someone
standing on a sidewalk and photographing the bland exterior of a public building may seem
suspicious. Still, this is what separates the United States from police states. Our system of
government expects law enforcement officers to endure significant burdens caused by citizens
exercising their First Amendment rights. Even provocative and challenging speech, along
with videotaping, falls within the protection of the First Amendment. Name calling,
questioning an officer’s authority, or telling the officer, “You’ll be on the evening news” –
that all goes with the job.7

But there must be exceptions… Obviously there are – exceptions. An order to stop recording
can be constitutionally imposed when an officer can reasonably conclude that the filming is
subject to a reasonable time, place, or manner restriction. Reasonable? For one, an officer
may have a reasonable expectation of privacy in what is being said. The federal wiretap
statute for example would prohibit someone from using a sensitive audio recording device,
like a parabolic microphone, to eavesdrop on the conversation of an officer and witness after
the two separated themselves from the crowd and made other reasonable efforts to keep their
conversation private.8

Even an open recording may be subject to a reasonable restriction. Since officers can control
the movements of the occupants of a car during a traffic stop, ordering a passenger to get back
in the car may be reasonable despite the passenger’s objection that “I can’t put you on the
evening news from back there.” Some traffic stops, particularly when the detained individual
is armed, might justify a safety measure – – for example, a command that bystanders disperse.
And a preexisting statute, ordinance, or other published restriction may limit where someone
5 See Gericke, 753 F.3d 1; Glik, 655 F.3d 78; and ACLU, 679 F.3d 583. 6 See for example, Federal Protective Service Information Bulletin (Report Number HQ-IB-012-2010) dated
August 2, 2010 construing 41 C.F.R. § 102-74.420 not to prohibit individuals from photographing the exterior of
federal buildings from publicly accessible places. This article focuses on recordings made on traditional public
forums, not those made on government property. Government installations and other property that are not by
tradition or designation forums for public communication are non-public forums, and the government can
regulate speech, so long as the regulation is reasonable and not an effort to suppress expression merely because
public officials oppose the speakers’ views. See for example Greer v. Spock, 424 U.S. 828 (1976)(a military
installation is a non-public forum). 7 See Gericke, 753 F.3d at 8 (a right to film police activity carried out in public, including a traffic stop, remains
unfettered unless a reasonable restriction is imposed or in place)(citations omitted).
8 The federal government and nearly all states have statutes addressing wiretapping and eavesdropping
protecting conversational privacy. See for example the Omnibus Crime Control and Safe Streets Act of 1968,
Title 18 U.S.C.§§ 2510-2520 (2006).
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can record. Imagine a curious onlooker who illegally parks his car beside the road and starts
filming.9
And the person photographing the federal building …? Obviously, a police officer has the
same rights as a private citizen. The officer can approach and ask questions, just like anyone
else. The officer can also effect a temporary, investigative seizure that is reasonable under the
Fourth Amendment if the officer can articulate facts that criminal activity is afoot. With
probable cause, even more intrusive measures can be taken. The suspect may be arrested and
a warrant issued to search the recording device.10
Quite simply, it is reasonableness that separates law enforcement in the United States from
law enforcement in police states. And reasonableness always depends on the officer’s ability
to articulate facts that justify the measures taken. Absent those facts, all the officer can do is
smile for the camera.

FLETC INFORMER