Can you record the police?
A recent story in the Tampa Bay Times asks the question: Can you record the police arresting someone in a public place? The police have arrested multiple people in Florida for videoingpolice interactions or arrests of other citizens during the past few years.
But is this actually illegal?
The law police try to apply to this situation is Florida’s “Anti-Wiretapping Law” which says it is illegal when a person:
“Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.” Section 934.03, Florida Statutes.
This law has, as far as I can tell, never been applied to convict anyone of a crime for recording a police interaction in a public place. Instead this law is supposed to prevent people from intercepting phone calls and private communications, and then distributing them.
But what if?
Let’s say an overzealous prosecutor actually wanted to bring a case against someone for recording the police in a public place. Would the videographer be convicted? Since there’s not really any appellate law in Florida on this issue, let’s look at what the federal courts have to say about using eavesdropping or wiretapping statutes to prosecute people who record the police:
“The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’” Glick v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
“In short, the eavesdropping statute restricts a medium of expression—the use of a common instrument of communication— and thus an integral step in the speech process. As applied here, it interferes with the gathering and dissemination of information about government officials performing their duties in public. Any way you look at it, the eavesdropping statute burdens speech and press rights and is subject to heightened First Amendment scrutiny.” ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012).
“Additionally, the United States Department of Justice has taken the position that the First Amendment protects the right to record police officers performing their official duties even in courts where that principle is not a matter of binding precedent.” Ortiz v. City of New York, 11 civ 7919 (S.D.N.Y. 2013).
So in other words, good luck with that, overzealous prosecutor. Although this issue hasn’t been definitively decided in the Florida courts, I think it’s safe to say any case against a person for recording the police in a public place would go nowhere fast.