The Civil Rights Division of the U.S. Department of Justice issued a guidance letter this week finding a First Amendment right to record police engaged in their official duties. Professor Eugene Volokh of UCLA School of Law picks up on this over at the Volokh Conspiracy.
The most recent case clarifying this First Amendment right is ACLU v. Alvarez, issued this month by the United States Court of Appeals for the Seventh Circuit. In Alvarez, the Seventh Circuit held that "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected …." (Emphasis added.)
These First Amendment protections for recording police officers apply on university campuses as well. In fact, in an incident at University of Massachusetts Lowell last year, a campus police officer attempted to stop a student from recording a campus police response to an altercation outside campus apartments. While that police officer has apparently been disciplined, some universities still retain policies that might allow them to punish students for exercising their First Amendment right to record police officers.
For example, a number of public universities, such as Minnesota State University, prohibit "[a]ny unauthorized use of electronic or other devices to make an audio or video record of any person while on University premises without his/her prior knowledge, or without his/her effective consent when such a recording is likely to cause injury or distress." Insofar as these policies require either prior authorization or consent to record police officers on campus, they are impermissible speech restrictions, contrary to the First Amendment and contrary to the policy of the Department of Justice.