The First Amendment Right to Record Images of Police in Public Places: The Unreasonable Slipperiness of Reasonableness & Possible Paths Forward

Analyzing federal cases through May 2015, this Article examines the current, contested terrain of the emerging, yet qualified, First Amendment right to record police performing duties in public venues. The Article argues that multiple First Amendment interests, ranging from the watchdog role of the press to discovery of truth under the marketplace of ideas theory, mandate that the reasonable-restrictions standard, which is now deployed by most courts to decide if this nascent right may permissibly be abridged, be jettisoned in favor of a more rigorous, speech-friendly approach. Specifically, the Article advocates a form of judicial review akin to strict scrutiny. It also proposes a framework of analysis—a “Continuum of Necessity”—for adding consistency and teeth to this tack. The Article concludes by calling on the Supreme Court to quickly consider a right-to-record case to establish two key points: (1) the existence of a clearly established First Amendment right in 2015 to record police performing their duties in public places; and (2) any restrictions imposed on this right are permissible only if they are so narrowly tailored that no viable alternatives exist that would allow for greater ability to record police under the circumstances