Do your law enforcement officers know the proper protocol as it pertains to citizen journalism and public photography? Do they know how to handle being photographed or recorded while they carry out their duties? With the widespread proliferation of smartphones, capable of recording high quality images along with audio and video, as well as the increasing deployment of police bodycams, everybody is documenting everything and everyone.
First Off, What is Citizen Journalism?
Citizen journalism involves private individuals, who are normally consumers of journalism, generating their own news content. These citizens create user-generated content in many forms including a podcast editorial or blog article about a city council meeting. Social media plays a major role in disseminating citizen journalism content allowing everyday citizens to be the first to report on breaking stories with real-time information.
The Rights of Citizens
In August 2010, the Department of Homeland Security distributed a bulletin outlining the right per Code of Federal Regulations which specifically allows photography in federal buildings, and reiterated pre-existing law that “absent of reasonable suspicion or probable cause, law enforcement and security personnel must allow individuals to photograph the exterior of federally owned or leased facilities from publicly accessible spaces.” Additionally, the 1st, 3rd, 5th, 7th, 9th, and 11th Circuit Courts of Appeals have ruled that the First Amendment protects individuals’ right to film police officers performing their official duties.
The takeaway from this? Taking photographs and videos of things that are plainly visible in public is a constitutional right. The problem lies in the ongoing pattern of law enforcement officers ordering people to cease taking photographs and video in public.
The Well-Informed Law Enforcement Officer
As long as any photographing or recording takes place in a setting at which the citizen has a legal right to be present and does not interfere with the safety of the officer or fellow citizens, officers shall not inform or instruct people that photographing or recording of police officers, police activity or individuals who are the subject of police action (such as a Terry stop or an arrest) is not allowed; requires a permit; or requires consent. Additionally, officers shall not:
- Order that person to cease such activity;
- Demand that person’s identification;
- Demand that the person state a reason why he or she is taking photographs or recording;
- Detain that person;
- Intentionally block or obstruct cameras or recording devices; or
- In any way threaten, intimidate or otherwise discourage an individual from recording members’ enforcement activities.
Case Law: Turner v. Driver, Grinalds, and Dyess
Although the officers in the case of Turner v. Driver, Grinalds, and Dyess were granted qualified immunity, Justice Jacques Weiner writes, “Filming the police contributes to the public’s ability to hold the police accountable, ensure the police officers are not abusing their power, and make informed decisions about police policy. Protecting the right to film police promotes First Amendment principles.”
Only under extremely limited circumstances is it permissible to seize the photographs or recordings belonging to a citizen journalist. Be very clear with your law enforcement department and offer training opportunities on the right to photograph and record in public. In the event of a lawsuit, the likelihood of charges being dismissed may be high thanks to qualified immunities but why risk going to court in the first place?