Second Circuit Joins Courts That Recognize First Amendment “Right to Record Law Enforcement Activity in Public”

We begin by joining a growing chorus of [eight of] our sister circuits that have recognized a First Amendment right to record law enforcement activity in public. {See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Sharpe v. Winterville Police Dep’t, 59 F.4th 674, 680–81 (4th Cir. 2023); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017); American C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 594–95 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).} That right encompasses Massimino’s recording of the exterior of a police station from a public sidewalk. {Exterior, as it is used throughout this opinion, means the areas visible from a publicly accessible area outside the police station.} …

The right to record law enforcement activity in public emerges from three foundational First Amendment principles. First, the First Amendment protects the creation of speech, not just the immediate act of expression. Second, speech on matters of public concern—and particularly discussion of governmental affairs—lies at the heartland of the First Amendment’s protections. Finally, the First Amendment protects the public’s right to gather and access information about the government. We take each principle in turn.

The First Amendment protects the acts of “creating, distributing, or consuming speech” in equal measure. In other words, the First Amendment encompasses the entire “speech process,” and therefore extends far beyond the precise moment of expression. Necessarily so. Otherwise, “[i]t would make permissible the prohibition of printing or selling books—though not the writing of them.”

This principle confirms that video recording falls within the protection of the First Amendment, at least as a general matter. Viewing, possessing, and distributing videos are acts protected by the First Amendment. A necessary antecedent to those acts is recording a video in the first place; to distribute a recording, one must first create a recording. Thus, creating a recording is part of the speech process.

When the government prevents a person from recording a video, it prohibits that person from possessing, viewing, and disseminating that video. And when the government does so based on the content of the recording—for instance, because the recording depicts law enforcement activity—the government implicates the “most basic” First Amendment principle: “As a general matter, … government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Thus, the First Amendment protects the creation of a video depicting law enforcement activity in public.

That right rests on a second independent foundation as well. It is anchored in the bedrock principle “that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”

There has long been “practically universal agreement that a major purpose of th[e] [First] Amendment was to protect the free discussion of governmental affairs.” In the daily lives of many Americans, “governmental affairs” is not an abstract concept; it is a badge and a uniform. When a citizen records public police activity, she creates speech concerning the state’s most immediate instrument for enforcing its laws. Speech of this kind “is more than self-expression; it is the essence of self-government.”

Lastly, the right to record law enforcement activity in public vindicates “the paramount public interest in a free flow of information to the people concerning public officials, their servants.” As the Supreme Court has explained, “the First Amendment … prohibit[s] government from limiting the stock of information from which members of the public may draw.”

Indeed, the First Amendment “has a structural role to play in securing and fostering our republican system of self-government.” “Implicit in this structural role is … the antecedent assumption that valuable public debate—as well as other civic behavior—must be informed.” As we have explained, “it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions.”

The right to record law enforcement activity in public fits squarely within these three principles. As the First Circuit has reasoned, “[a]n important corollary to th[e] interest in protecting the stock of public information is that ‘[t]here is an undoubted right to gather news from any source by means within the law.'” Recording law enforcement activity in public exercises that right.

We do not doubt that being recorded and exposed to public view while on the job may place added strain on the challenging job of law enforcement. But “[t]he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.” That is doubly true for law enforcement officers who serve, and wield tremendous power over, the very public seeking to record them as they perform their duties….

And the court concluded that this includes the right to record the exterior of a police station, even if in the process he recorded some activity within the station that was “publicly visible”:

Massimino may have recorded some areas of the building that were not open to the public to enter. But Massimino has not claimed a right to physical access. Instead, he claims a right to record and disseminate what was in plain view from the public sidewalk—what any passerby standing in the same location could have observed. Those areas were exposed to ordinary observation by Massimino and any other passerby on the unrestricted public sidewalk.

{Nothing in the record suggests that Massimino used technology to capture information that could not otherwise be observed from his lawful vantage point on the public sidewalk. We do not address a recording made through technology that reveals information not otherwise perceptible by ordinary observation from that location.}

The court noted, however, that it did not “decide whether the government may impose a properly tailored restriction directed at recording particular persons entering or leaving a station, nonpublic security features, or other information implicating concrete privacy or safety interests.”

Judge Reena Raggi declined to reach the First Amendment right-to-record question, because she thought it was enough to conclude (as did the majority) that the right hadn’t been clearly established at the time of these events, so the police officers got qualified immunity:

As the majority notes, this court has thus far declined to decide “whether the First Amendment protects a right to record law enforcement activity in public.” We should not attempt to do so in this case, which involves very little “activity” of any kind, much less “law enforcement activity.” …

The overwhelming majority of the video recorded by Massimino depicts no police officers at all—that is, until Massimino is approached by the defendant officers. Rather, the focus of Massimino’s video is on the exterior of the police station, which Massimino records as he travels round the building while occasionally lingering or zooming in on its main entrance; the side entrance to its “Youth Division” (not generally open to the public-at-large); a station rooftop security camera; and its semi-open garage, through which some police vehicles were visible. To be sure, at one point, a person in civilian clothing is briefly recorded standing outside the Waterbury station’s main entrance. His identity and the reason for his presence are unclear. He does not appear then to be either engaged in, or the subject of, any law enforcement activity. At other points, three police vehicles are briefly recorded, one entering and one leaving the station garage, and one in street traffic. While there may well be circumstances in which the movement of police cars reflects law enforcement activity, that is not obviously the case here. Indeed, Massimino focuses on these vehicles only briefly before panning away to continue recording the exterior of the building, where no activity of any kind is occurring….

In sum, in this case, where a plaintiff’s recording focus was on a building, and not on “activity,” there appears to be no reason for the court to pronounce a broad First Amendment right to record “law enforcement activity” occurring in public….