It is pretty clear to me that there ought to be some kind of right to photograph and film police, especially arrests. And yet, at least one US District Judge Finds no First Amendment Right to Film or Photograph Police:
We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct. (Fields and Geraci v. City of Philadelphia et al)
Here’s the problem: the First Amendment protects expressive conduct. We often think of the main role of the photographer as quietly observing and recording; their expressive conduct comes later, when they publish that record. Of course, there’s some reason to think that that required action is thus equally-well protected: I can’t publish a video of police if I’m not allowed to film a video of police.
But we don’t really think this is a generic right. We usually assume that ordinary folks have some right to their likeness and some expectations of privacy. Police are special, and we need enhanced rights to record their activities. Yet the First Amendment might not be designed to cover that special instance. I suspect that the right to film police would best be understood as one of those old penumbral rights no longer in fashion: a living update of the implications of the First, Fourth, and Fourteenth.
I think of filming the police sort of like I think of election monitors: the right to free and fair elections occasionally requires an ancillary right (to monitor elections and note violations) to preserve that primary right to vote. This is always a strategic or practical question, though: you wouldn’t need election monitors of the ordinary sort in Oregon, where all voting is done by mail. Under those circumstances, it would be odd for an election monitor to shove his way into your living room to make sure your postal ballot was properly prepared. But we do need some form of accountability in these matters, and under the current circumstances, photography is a good check on police abuses.
You can’t guarantee due process, reasonable search and seizure, or free expression of dissent without the ability to record interactions with police. And yet, this would fail any originalist’s test, for how can there be an implied right in an 18th century document that can only be exercised with 21st century technologies? It’s not like firearms or the printing press, where some version of the technology existed and it has merely become more effective.
Alternatively, the courts should recognize a First Amendment right to observe and record police as a variety of assembly. This, though, would subject it to much more exacting restrictions on the time, place, and manner of the recording. Legislatures might even be able to curtail filming police arrests entirely under this understanding of the right! Consider that even with a constitutional right to assemble, a city may appropriately require permits for rallies and even restrict the spaces where protests can occur. Would we accept restrictions on observing and recording police such that only credentialed journalists could do it? I think not: the power of the camera phone is that anyone can act as a citizen journalist when they see police engaged in potential misconduct.
Of course, my real problem with original meaning arguments is that they assume the framers were godlike or genius-like in their pronouncements. They certainly weren’t. We should have a lot less respect for them, a lot less of a tendency to call them Founding Fathers with capital letters. They were men, and venal ones. Most of them had slaves, and large parts of the Constitution and the Bill of Rights were designed to help them keep their slaves. When we help people draft their own constitutions–like in Iraq or East Timor–we always make sure they don’t repeat the model in the US Constitution, because it’s antiquated and usually leads to massive constitutional crises in short order. Most of US politics is basically an elaborate work-around for that; a patch on a patch on a patch of broken code.
That’s why I hope that the Supreme Court will eventually recognize filming the police as an act of expressive conduct worthy of protection under the First Amendment: not because that’s the best analysis of such cases, but because our system increasingly needs such “cheats” just to function.