Knowledge Is Power: The Fundamental Right to Record Present Observations in Public
Gunn, Travis, William and Mary Law Review
TABLE OF CONTENTS INTRODUCTION I. A GLIMPSE OF THE PROBLEM II. CONTEMPORARY FOCUS ON THE RIGHT TO RECORD A. First Amendment Litigation B. Fourteenth Amendment Litigation III. SUBSTANTIVE DUE PROCESS A. Interests Protected by Substantive Due Process 1. Existing Constitutional Rights 2. Egregious Executive Conduct 3. Nontextual Constitutional Rights B. Generality and Scope of the Liberty Interest C. The Nontextual Right Analysis: Establishing the Liberty Interest as Fundamental 1. Private Citizens 2. A Right to Record by Mechanical Device .. a. The Historical Treatment of Mechanical Recording b. Natural Recording--Step 1: Matter Exists in Physical Reality c. Natural Recording--Step 2: Humans Observe Things via the Body d. Natural Recording--Step 3: Humans Record Observations via Memory e. The Tradition of Natural Recording Extends to Mechanical Recording 3. All Things Within Public Space 4. Legally Observable by a Private Citizen D. Subsequent Steps of the Substantive Due Process Analysis 1. The Fundamental Liberty Interest Must Be Substantially Infringed 2. The Infringement Cannot Survive Strict Scrutiny CONCLUSION
"Publicity is a great purifier because it sets in action the forces of public opinion, and in this country public opinion controls the courses of the nation." (1)
The 2010-2011 democratic movements in Africa and the Middle East, dubbed the "Arab Spring," have borne witness to peaceful uprisings, bloody civil war, the deaths of civilians and militants, the removal of tyrants from power, and lingering questions regarding the future of these countries. (2) During such times of turmoil, violence, and uncertainty, it is unfortunate--but far from surprising --when there are reports of targeted violence and persecution against those recording these events. (3)
In America, by contrast, those with power employ similar tactics of oppression--but without the pretense of societal chaos as an excuse. Americans seeking to record public life often find themselves victims of government suppression. Police have used physical methods to prevent journalists from recording public protest events across America, such as "Occupy Wall Street." (4) Police have trained their guns on unarmed citizens for recording their activities in public streets. (5) Citizens have been arrested for recording police officers' public conduct. (6) Claims of police destroying recording equipment and erasing recorded material are common. (7) These events are not new, they happen often, and they occur throughout America. (8)
When police subject Americans to such treatment, they act either on their own authority or pursuant to legislative decree.9 The United States currently lacks a judicial check on this kind of suppression. (10) To protect against this assault on the acquisition of knowledge, courts require---and America needs--a properly founded constitutional protection. The Fourteenth Amendment is the source of that protection; through it, every American has a fundamental right to record.
Part I of this Note evaluates the formal intrusion of state authority on the right to record: recording statutes. Part II assesses the current state of litigation regarding the right to record. By the conclusion of these two Parts, this Note will have shown that the government is restraining the right to record and that the current legal paradigms are insufficient to truly provide protection. To this end, Part III engages in a Fourteenth Amendment substantive due process analysis of the right to record, ultimately concluding that such a right is fundamental and therefore protected under substantive due process jurisprudence.
I. A GLIMPSE OF THE PROBLEM
Although the scope of the constitutional right must be developed,11 the best introduction to the issue is evaluating those statutes directly limiting the proposed right. …