The Right to Record

What do you get when you mix portable technology that can capture and disseminate high-definition footage with the touch of a button and a growing national concern about police accountability? Anyone who has seen the news coverage of a police brutality case over the last few years knows the answer: bystander cell phone footage of confrontations between police officers and citizens. These bystander recordings can serve several purposes. Some are taken as potential evidence in a case of an officer abusing their power; others are meant to go viral, serving as an educational tool in the fight against police brutality; others still simply allow a bystander to make their presence known, offering both solidarity to the individual being confronted and letting the officer know that they, and any abuse that may occur, will not pass unnoticed. It was the proliferation of these recordings that sparked and have helped sustain the Black Lives Matter movement. Many recordings have been used in court to determine whether an officer is overstepping their bounds. In short, capturing cell phone footage of officers has become a very common and powerful tool for citizen journalists and activists looking to document and stamp out the abuse of power on behalf of the police.

What we tend not to think about when we watch these videos, however, is the person behind the camera. Is their right to record these confrontations protected? Could they be arrested for creating a disturbance or infringing on an officer’s privacy, and would that arrest be constitutional?

An arrest and subsequent suit settled this week answers some of these questions. In July of 2014, 26-year-old activist Ruben An recorded three NYPD officers questioning a homeless man on a New York City sidewalk. The video shows one of the officers warning An that he is disrupting a police investigation and that he needs to step aside. An backs away but refuses to stop recording. The same officer again approaches him and tells him that he is blocking the sidewalk, and will be arrested if he continues to record. An responds, “I have the right to document police activity, sir.”

The officer continues to threaten An, saying, “I’m letting you know what’s about to happen…Stand there, then, if you feel confident.”

After about 15 seconds of recording later, the officer goes up to An and orders him to produce identification. An repeats that he has the right to document police activity and adds, “Officer, I have the right to not show you I.D. That is my right.” The officer then grabs An’s arm and proceeds to arrest him.

An was charged with obstruction of governmental administration, disorderly conduct and resisting arrest. The jury cleared him of all counts, and two years after the incident An sued the NYPD, arguing that by interfering with his recording of police activity, the officers had violated the First Amendment. This past week, An and the NYPD reached a settlement, with the police department agreeing to the implementation of several measures to make its officers aware of the legality of citizens recording police activity.

Capturing footage of police activity may not be the first thing that comes to mind when discussing freedom of the press. Seemingly every high-profile press freedom case involves “real” journalists and their critical or controversial news coverage. A crucial part of understanding Ruben An’s argument, however, is the concept that the qualities that make up a “real” journalist have become blurrier over the last few years. More and more of the news we consume is written, reported, and disseminated by members of the public. Regardless of their educational background, work experience, or place of employment, the people who produce this news are by all means journalists. Therefore, An became a citizen journalist as soon as he hit record; and as such, he is–or should be– granted the same press protection as any formal member of the press.

The First Amendment grants freedom to the press to discuss and criticize public institutions, and protects journalists’ right to publish these discussions and criticisms. But if these freedoms are only extended to formal members of the press, where would it leave members of the public who have crucial information to disseminate? If certain First Amendment freedoms are only extended to members of society that have received a specific college degree, work for a national news source, carry a press card, or possess any other arbitrary quality that could define a journalist, then is the end goal truly a free society–or one where the few speak for the many?

Ruben An did his duty, not simply as a citizen journalist, but as a responsible citizen. His effort to keep police officers accountable is one that is rightfully protected by our constitution. This culture of accountability, citizen activism, and proactive bystander activity will only flourish and as more and more activists and citizens become aware of this fact; now all we need is for officers themselves to be aware of it.