MFIA Clinic Presses Court to Affirm First Amendment Protection for Filming in Public
This week, the Media Freedom and Information Access (MFIA) clinic at Yale Law School entered a debate currently before the 2nd U.S. Circuit Court of Appeals over whether the First Amendment protects the act of video recording in public spaces.
The 2nd Circuit is set to consider the question in the pending case Massimino v. Benoit, in which the plaintiff was stopped, questioned, and ultimately arrested for filming the exterior of a police department building in Waterbury, Connecticut, from a public sidewalk. Although nine other courts of appeals have recognized some level of constitutional protection for the act of recording in public, the 2nd Circuit has not, leaving would-be recorders at risk, according to the clinic.
On behalf of a group of First Amendment scholars and advocates, the clinic filed an amicus brief arguing that the right to record in public spaces is constitutionally protected under the First Amendment.
“Recording serves important First Amendment interests,” the brief states, by promoting public dialogue, supporting the free flow of information, and allowing citizens to challenge government misconduct. The brief highlights how modern recording devices — such as smartphones — have become indispensable tools for documenting public events and ensuring that government activities are subject to public scrutiny.
The clinic’s brief argues that at least three different foundations support a First Amendment right to record: recording is an essential precursor to speech, is itself expressive, and serves an important information-gathering function. The brief urges the Court to recognize a right to record that is based on one or more of these frameworks, arguing that doing so is important not only to uphold individual rights but also to provide clarity on the scope of First Amendment protections in the 2nd Circuit. Without a clear ruling, citizens and journalists in the region could face uncertainty about whether they are protected when recording in public, according to the clinic. That uncertainty, the brief says, is already chilling recording activity and suppressing debate on important public issues — particularly in cases like Massimino, where the content to be recorded is a matter of public concern.
“Without a clear statement from this Court, those who wish to exercise their rights to record in public face a difficult choice: forego their expressive activity or to risk arrest,” the authors wrote. “Officers who view recording (and the concomitant public scrutiny) as a nuisance are empowered to turn away, punish, and even arrest those who exercise their rights to record, notwithstanding the constitutional protection afforded that right in other circuits — and the state law protections afforded in this one.”
Recognizing that the First Amendment protects the right to record does not mean that the government may never restrict the act of recording — it simply means that restrictions will be subject to the appropriate level of constitutional scrutiny, according to the clinic. But in this case, the brief argues, the officers’ actions would have been unjustified under any level of constitutional scrutiny, because there was no valid basis to interfere with Massimino’s recording. He was recording safely and temporarily from a public sidewalk, and his recording did not infringe on anyone’s privacy interests, according to the clinic. The brief states that Fourth Amendment case law has long made it clear that the publicly visible exterior of a police precinct has no “reasonable expectation of privacy,” nor do its officers when they carry out their duties in public places.
“There’s robust consensus on this issue for a reason,” said Clinical Lecturer in Law Stacy Livingston, a Newmark Fellow at the clinic and one of the authors of the brief. “When public officials are empowered to suppress recording activity without a clear, content-neutral reason, they’re also empowered to shield their actions from public scrutiny. The First Amendment is meant to serve as a check on that power.”
The MFIA clinic filed the brief on behalf of the New England First Amendment Coalition and a group of prominent First Amendment scholars and advocates from law and journalism schools nationwide. The Court’s decision on the right to record in public spaces is anticipated to have significant importance for the broader understanding of free speech rights and government transparency.
