With the rise in reports of police misconduct and brutality, New York citizens are wondering whether they have a right to film officers in action. According to the Legal Information Institute, the First Amendment of the U.S. Constitution allows freedom of speech, religion, press, expression, assembly and petitioning of the government to redress grievances.

Police state word cloud shape concept

Police state word cloud shape concept


Several high-profile cases have recently brought attention to the issue of police misconduct, and the Supreme Court clearly establishes the First Amendment right to freedom of press, which includes filming. If you were the victim of police brutality, call Goldberg and Allen, LLP today at 212-766-3366 to discuss your situation with an experienced criminal lawyer in New York City. In the meantime, read on to learn more about the legalities surrounding capturing police misconduct on camera.

Despite the First Amendment, Stipulations Do Exist

In 2011, a freelance video-journalist captured on film a violent arrest that caused significant injury to the suspect. The officers arrested the man with plastic handcuffs that bruised his wrists extensively, and after issuing him with a summons to appear in court, they charged him with disorderly conduct, which the court dismissed a few months later.

The journalist claimed retaliation for filming the officer’s actions, stating that it was in direct violation of his First Amendment rights. In court, the defendants argued that the First Amendment does not protect the right to videotape the police because it does not equal “expressive conduct.” To resolve the dispute, the court turned to another case, where the First Amendment claim was not successful.

The dismissal of the claim was the result of not alleging a connection between the police’s retaliation and the videotaping. At the time, the court made it clear that the Supreme Court had not yet addressed the right to record police conduct, concluding that it was unclear whether the First Amendment protected such a right.

The confusion relates to the suggestion that filming or photographing for personal use lacks an audience to broadcast a specific message and therefore cannot enjoy a classification of “press.” While this raises questions for private citizens filming an incident, it does clarify the right for journalists to film or photograph specific stories for news publications.

A Step in the Right Direction

Though the court does not consider videotaping events an expressive activity, it is closely related to an expressive activity, especially when it involves professional journalists. These issues narrow the question down to whether the right to film police activity exists, which is a question the Supreme Court and the Second Circuit have yet to answer.

The First Amendment does protect the right to videotape or photograph police activities if the officers are performing duties in a public area, the filming does not interfere with any arrest in action and there are reasonable restrictions to the time, manner and place of the recording.

Considering nearly everyone has a cellphone that can videotape and capture images, claims of retaliation for filming police brutality are rising rapidly. Police officers are aware that retaliating against innocent civilians for videotaping an arrest is a direct violation of their First Amendment rights.

Goldberg & Allen, LLP has extensive experience handling cases of police brutality, misconduct and false arrest. Call 212-766-3366 today to speak to a criminal attorney who specializes in these kinds of cases.