One bystander with a cell phone can change an individual's encounter with law enforcement from an unprovable allegation of abuse to a media sensation. Audio and video recording, a capability in nearly every American's pocket, has changed the way that citizens interact with police officers. Today, the technology that immortalized the police beating of Rodney King exposes excessive force used on the Occupy Wall Street protestors,1 monitors the actions of officers making arrests,2 and allows individuals to memorialize their conversations with investigators.3 Recordings of law enforcement activity create not only clear evidentiary accounts that benefit victims and innocent police officers, but also strengthen incentives for law enforcement to use only reasonable force or risk being exposed to the media, facing professional discipline, or even prosecution. Compelled by these public policy considerations, most states have enacted statutes to protect the recording rights of citizens. However, many recorders find out too late that they have recorded a police officer in the wrong state and, when they attempt to use their recordings to expose questionable behavior, are arrested themselves.
Federal and state anti-wiretapping and anti-eavesdropping statutes are primarily designed to protect the privacy rights of those whose conversations might be recorded without their knowledge. However, these same statutes can often have consequences that reach far beyond this well-meaning goal. In many instances, law enforcement officers can utilize these statutes to arrest citizens that are recording the officers' interactions with the public. The ostensible purpose of this application is to protect the safety and privacy of the police officers.
When statutes are interpreted in this way, they spill beyond the bounds of individual privacy and begin to invade the First Amendment speech rights of the public. As written, many state recording statutes demonstrably violate the First Amendment. Others can be applied to violate those rights. This Comment argues that in order to strike an appropriate balance between First Amendment speech rights and the strong public interest in protecting police safety and privacy, state legislatures should amend these eavesdropping statutes to include a strong rebuttable presumption in favor of the citizen recorder. Underlying this rebuttable presumption is the argument that when police officers act in their official capacity, the public policy reasons behind protecting an individual's privacy are diminished and ultimately outweighed by the incentives to encourage free speech. The presumption against the officer would not be absolute: in cases where the interest in officer privacy and protection are very strong and outweigh free speech concerns, the officer may have the opportunity to rebut the presumption in court.
Part II of this Comment will review the relevant state statutory and case law that has led to inconsistent rules and has resulted in free speech violations. Part III will address the tension between protecting First Amendment rights and the value of protecting police officers and will explain when it is appropriate for each to be impaired for the sake of the other. Part IV will explain the need for and benefits of a rebuttable presumption against police privacy. Part V concludes.
An individual's right to record an encounter with a police officer depends largely on the state recording statute where the encounter occurs, the state case law interpreting the recording statute, and the constitutional rules adopted by the applicable circuit court. The combination of these legal rules often leads to ambiguity. This Part will explain the varying rules that have been adopted by states as well as recount the major statutory interpretations of the laws by both state and federal courts.
A. Variation in State Statutory Law
Recording statutes, generally characterized as prohibitions on wiretapping or eavesdropping, vary widely across states, with some more likely to favor the citizen and some more likely to favor the police officer. …