Because Americans value our privacy, and because we especially value the privacy of our children, there are a lot of misconceptions about our (sometimes supposed) rights to not be photographed or filmed in public without giving explicit permission.
In other countries, it is true, there are legal limits on such photography, and special circumstances in which it is against the law to take pictures of children below a certain age even when they are perfectly visible in public to anyone passing by.
As American journalists know because of our profession, and because we understand our First Amendment rights, there are no such restrictions here.
Anything or anyone visible, for instance, from a public sidewalk is fair game for taking a picture of. Private-property rights are still absolute — you can’t step into a neighbor’s yard, much less into their homes, and take a picture.
But what is visible from a public place — a business’s building, or the outside of your home — is fair game. For national security reasons, there are rare exceptions, and sometimes military bases have the legal ability to stop you from filming. Again, very rare.
This is not to say that it isn’t sometimes annoying when someone pulls out a camera and uses it. And now that literally almost everyone has a powerful camera in their pockets at all times within their mobile phones, the annoyances can be myriad. You can understand the annoyances that a celebrity must feel when they are out in public — taking their kid out for an ice-cream cone, say — and paparazzi or anyone else start filming. But other than asking you to stop, they can’t legally force you to do so.
We can understand that for law enforcement officers trying to do their tough jobs, almost always in public, the profusion of video cameras simply everywhere must be especially annoying. Such images can be edited, can be “taken out of context,” and it doesn’t make doing those tough jobs any easier.
But police must respect First Amendment rights the same as anyone else in our country. They have the right to stop you from interfering with their work, but not to stop you from filming it. Camera phones have become indispensable tools in protecting the public’s own right to not be abused — or worse. The video taken by bystanders during the murder of George Floyd at the hands of Minneapolis police sadly didn’t save his life — but it was instrumental in the ability to bring the murderers to justice.
Now, some police departments are seeking limits on such filming.
“The courts say you have a right to video-record the police. They also say police have the right to do their work unimpeded. And with the spread of ubiquitous video-recording devices, those two rights have increasingly come into conflict,” NPR’s Martin Kaste recently reported.
He quoted Al Palacio, a Florida police officer and official with the state Fraternal Order of Police, who said of those filming, “They do it just to get likes and clicks” on social media. He said he’s particularly concerned about the rise of “First Amendment auditors,” people who film police in conflict situations and post the resulting confrontations online in order to grow their audiences.
Palacio likes a law passed by the Florida Legislature in March that sets a new “safe distance” standard for video at 25 feet once officers have warned the public to stay back. A backer of the law says it will stop filmers “who jump all over an officer.”
Truthfully, 25 feet seems like a long way away from jumping all over an officer. Arizona created the nation’s first “buffer zone law” two years ago banning video-recording police from less than eight feet, and even that law was later challenged and overturned using First Amendment arguments. Other states have passed similar laws, including Louisiana, and Charles Maldonado of Verite News, a Black-owned news source in New Orleans, says it makes it harder to do their work. He cites Verite’s filming of multiple arrests of protestors and journalists in Baton Rouge in 2016, which led to court challenges and a cash settlement by the city.
So Verite and other news organizations joined a lawsuit brought by the Reporters Committee for Freedom of the Press challenging Louisiana’s new 25-foot buffer zone law, and we commend them for their efforts.
The International Association of Chiefs of Police now officially back citizens’ right to record, saying simply that interactions between police and the public should be guided by “common sense.” We agree.
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