In 2014, Law Forum published Citizen Journalists & the Right to Gather News: Why Maryland Needs to Acknowledge a First Amendment Right to Record the Police by Kristine L. Dietz (J.D., 2014).
More than half of cell phone users in the United States own a smartphone. The video recording capabilities of smartphones make it possible for users to record anything, almost anywhere, at anytime. This modem technology allows for the immediate transfer and widespread dissemination of footage. Recently, videos of alleged police misconduct have gone viral on the Internet and the police are not happy about it. This increase in citizen journalism has left police officers defensive about their privacy and their ability to do their job without interference.
Proponents of the First Amendment, however, vigorously argue that implicit in each citizen’s First Amendment right to gather, receive, and record public governmental conduct is the right to record police. This article will explain why this right must be recognized. The First Amendment protects the press from governmental restrictions not because they are members of the press, but because those protections are provided to all citizens. Accordingly, protections of free speech and free
press tend to be one and the same. Therefore, if members of the press are allowed to record public governmental conduct, it follows that citizens should also be allowed. Not only are citizens allowed to record public governmental conduct, but also they play an important role in holding the government accountable to the people.
Part I of this article includes an introduction to the cases and incidents that placed Maryland at the forefront of this First Amendment issue. Part II addresses the federal attention Maryland cases have attracted, and Part III advises on the outcomes of the Maryland cases. Part IV explores citizens’ First Amendment right to gather information. Part V investigates the right to record under the First Amendment and explains how Maryland is violating this right. Part V will also discuss the Press Clause, the Fourth Estate theory and marketplace of ideas, prior restraints, and the Maryland Wiretap Act. Finally, Part VI proposes a bright line statute establishing a citizen’s right to record police activity.
To read the rest of Kristine L. Dietz’s article, you can download it here.
Image taken from SACS Consulting & Investigative Services, Inc.