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Unpublished Paper
Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen's Right to Record the Police in Public
ExpressO (2013)
  • Taylor R Robertson, Oklahoma City University School of Law
Abstract

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful citizen.

While the Supreme Court has previously refused to reconcile the tension between First Amendment free speech and Fourth Amendment privacy, these rights actually support a citizen’s right to record the police in public together—they are no long opponents but allies. Indeed, the practice of recording the police in public is completely consistent with the Framer’s intent behind the Fourth Amendment because citizens are more likely to be secure from unlawful searches and seizures when they are afforded the opportunity to monitor and record the activities of law enforcement.

When citizens are arrested for recording the police only to be subsequently released if the charges are dropped, serious incidental effects take place. A national rule that clarifies the contours and limitations of the right to record the police in public will not only spare the courts, the police, and the citizens from those effects, but it will also educate all of the necessary actors in hopes of ensuring the law’s proper application. Because change on a state-by-state basis is likely to be neither efficient nor adequate, the Supreme Court or the federal legislature should be the one to step into the spotlight and act.

Keywords
  • Citizen Journalist,
  • Recording the Police,
  • Wiretapping,
  • Eavesdropping,
  • Cellphone
Publication Date
July 13, 2013
Citation Information
Taylor R Robertson. "Lights, Camera, Arrest: The Stage is Set for a Federal Resolution of a Citizen's Right to Record the Police in Public" ExpressO (2013)
Available at: http://works.bepress.com/taylor_robertson/1/