FIRE is currently running a student video contest for the best short video dealing with the suppression of liberty on campus. Also, at the Campus Freedom Network Conference—which begins today!—FIRE Media Director Emily Guidry will be exploring the legal issues surrounding filming on campus during a session with documentarians Andrew Marcus and Evan Maloney. Before filming on campus, it is a good idea to know your rights, especially since a public official may try to stop you from filming. Here’s a brief primer on the right to film on campus for those of you who aren’t attending the conference. For a cited legal analysis, check out the brief on the National Press Photographers Association website.
Generally, people are allowed to film in a public forum, which is public property traditionally open to the public, like sidewalks, parks and streets. Much of a public campus falls into this category. For the government to stop citizens from filming in such areas, it must have a compelling justification. A person can film anything they can capture from a public forum as long as it does not invade other people’s privacy, which is defined as whether the person has a reasonable expectation of privacy. A person reading a book in a public park, for example, would not have a reasonable expectation of privacy, for the person knows anybody can walk by and see what they are doing. If people are making efforts to hide or shield what they are doing—like whispering in the corner of a room, facing the wall—or if they are in a place generally understood as private, like a dorm room or a bathroom, they have a reasonable expectation of privacy. Also, the school has a right to place reasonable time, place and manner restrictions on the campus, so filming might run against some of those restrictions-but usually, only if it is a large, disruptive filming production.
A public school can generally ask a person unaffiliated with the school to leave the campus, in which case, they would be trespassing if they refused to leave. The school does not have a right to take any film already acquired, however, nor can the school ask a person to leave solely because they are filming. The rights of unaffiliated people to be on campus differ from state to state and circuit to circuit, so if an unaffiliated person wants to film on a public campus, they should check the relevant laws in the state-one might have a right to stay on campus by virtue of a state law.
Filming inside spaces at public schools that are restricted in their use will generally be governed at the discretion of the school. The school does not have to allow, for example, filming inside classrooms, the school gym or dorm rooms. Nevertheless, any bans on filming must be generally applied—the school cannot lawfully pick and choose which filming to allow based on the purpose of the filming. Usually, such choices would constitute viewpoint discrimination and be constitutionally impermissible.
A private campus, on the other hand, can usually ban filming at its discretion. In a few states, there may be a right to film in privately owned areas open to the general public, like private campus sidewalks and lawns, but the general rule is that a private campus can set its own regulations regarding access and filming. It seems like most private schools require a permit to film, at least for commercial purposes. Of course, one can film private campuses from a publicly owned sidewalk without permission.
If the film is used for commercial purposes, one should be aware that one can be sued for appropriation—using someone else’s image without their consent in order to make money—and, whether the film is used for commercial purposes or not, one might be sued for violating a person’s privacy or for portraying someone in a false light, which entails presenting a person in a highly offensive and deceptive manner.
I would recommend checking a school’s policies and state laws before filming. With public schools, they may have policies that are probably not constitutional—like requiring a permit for all filming-but the student might want to be aware of those policies and decide whether it is worth the hassle of disobeying the policies. Just remember, if you’re filming in a public place, a public school cannot confiscate your film or stop you from filming. Often, officials try to stop people from filming even if they have no authority to do so.