The U.S. Court of Appeals in Boston (1st Cir.) recognized last week a First Amendment right to video record a traffic stop that occurs in a public place.
This case raises an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute.
The court wrote that filming the police in public serves the First Amendment’s primary interest of “protecting and promoting ‘the free discussion of governmental affairs.’” In reaching its decision, the court had a detailed discussion outlining the role newsgathering plays in uncovering official abuse and safeguarding governmental competence.
However, the Court declined to recognize and extend its decision to an absolute right to record traffic stops.
Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them … reasonable orders to maintain safety and control, which have incidental effects on an individual’s exercise of the First Amendment right to record, may be permissible…
Because traffic stops can be “fraught with danger” for police officers, the court wrote that an officer may prohibit an individual from filming his conduct “if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.”
The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure — for example, a command that bystanders disperse – that would incidentally impact an individual’s exercise of the First Amendment right to film.
The court’s decision expands on the First Circuit’s decision in Glik v. Cunniffe. There, the First Circuit ruled that an individual had a First Amendment right to record an arrest that occurred on the Boston Commons.