I have divided this page into four sections:
I. Published Law Review Articles On Point
Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 337 (2011).
This is the closest thing to an article on point. Professor Kriemer (UPenn), however, writes more in general about the right to record, as opposed to the right as applied to recording police. The article is a “must read” for people who are interested in the topic of a right to record police. Professor Kreimer has been involved with some significant litigation inPennsylvaniaon the right to record police as well.
Morgan Leigh Manning, Less Than Picture Perfect: The Legal Relationship Between Photographers’ Rights and Law Enforcement, 78 Tenn. L. Rev. 105 (2010).
This recent article surveys the issue generally. It takes a refreshingly practical look at issues like qualified immunity. It’s not thorough on the current case law, but it’s a very useful article and accessible resource. If this area of the law is new to you, be sure to take a look at her sections on qualified immunity and crafting a constitutional argument.
Dina Mishra, Undermining Excessive Privacy for Police: Citizen Tape Recording to Check Police Officers’ Power, 117 Yale L.J. 1549, 1554 (2008).
This short Yale Law student comment considers in particular theMassachusettswiretapping law. It’s fairly widely cited for a student comment. Note that I strongly disagree with her conclusion on what the “rule” should be.
Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981, 1006 (2009).
This Suffolk Law student note essentially argues that the MassachusettsHyde case was wrongly decided. She touches on an important piece of ongoing litigation, the Glik case when it was still in the criminal defense stage. Ironically, the author is now lead counsel for the city of Boston in the subsequent § 1983 suit of that case.
Jesse H. Alderman, Police Privacy in the iPhone Era? The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian’s Right to Record Public Police Activity, 9 First Amend. L. Rev. 487 (2011).
Alderman picks up where Skehill left off. He wrote this while clerking for the Mass. Supreme Court, (Justice Cordy). That alone makes this a worthy read. But the big win is the 50 state survey inthe article. [The link is to a draft version--can't find the current version yet. - BigM]
Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards A Realistic Right to Gather Information in the Information Age, 65 Ohio St. L.J. 249, 269-70 (2004).
This article asserts, in part, that accumulation of data is quite distinct from expressive conduct and afforded different protections.
II. Forthcoming Law Review Articles On Point
Michael Potere, Who Will Watch the Watchers?: Citizens Recording Police Conduct, 106 Nw. U. L. Rev. ____ (2012).
Mario Cerame, The Right to Record Police in Connecticut, 30 Quinnipiac L. Rev. 385 (2012).
Final version available on request.
III. Law Review Articles Not On Point But Useful
Eugene Volokh, Freedom of the Press as an Industry or as a Technology, 160 U. Pa. L. Rev. ___ (2011) (forthcoming) (draft).
This forthcoming article presents a theory that freedom of the press was a freedom to use a certain technology, not an institutional freedom. This theory has important First Amendment implications for the use of technology to create media. Professor Volokh uses an originalst approach and I believe his argument is sound and strong. His use of historical cases is super useful and interesting.
Howard M. Wasserman, Orwell’s Vision: Video and the Future of Civil Rights Enforcement, 68 Md. L. Rev. 600 (2009).
This article discusses how video is important to civil rights litigation, as well as how many times video is not useful at all.
Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037 (1996).
This article discusses the widespread practice of officer perjury. A natural corollary is that cheap video is a tool against that lawlessness.
Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 Conn. L. Rev. 981 (2002) (link is to a course–it may not last forever).
Alison L. Patton, The Endless Cycle of Abuse: Why 42 U.S.C. S 1983 Is Ineffective in Deterring Police Brutality, 44 Hastings L.J. 753 (1993).
These two articles question the efficacy of civil rights litigation.
Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107 (2000).
This article considers the importance of transparency in policing, an important to the right to record as a matter of policy.
Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1 (2004).
The author presents a new theory for what freedom of expression means today. “The digital age provides a technological infrastructure that greatly expands the possibilities for individual participation in the growth and spread of culture and thus greatly expands the possibilities for the realization of a truly democratic culture.” Id. at 6. “The digital revolution, after all, is an economic revolution as well as a technological one.” Id. at 13.
Stephen E. Henderson, “Move on” Orders As Fourth Amendment Seizures, 2008 B.Y.U. L. Rev. 1 (2008).
This article is a useful starting place for dealing with catch-all criminal statutes—especially important in non-wiretapping states.
David A. Anderson, Freedom of the Press, 80 Tex. L. Rev. 429 (2002).
David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455 (1983).
Potter Stewart, Or of the Press, 26 Hastings L.J. 631 (1975).
Melville B. Nimmer, Introduction—Is Freedom of the Press A Redundancy: What Does it Add To Freedom of Speech? 26 Hastings L.J. 639 (1975).
These articles assert that the press clause protects the press as an institution, not really individuals. If their theory is correct, then individuals may have fewer protections under the First Amendment than the organized press. I strongly disagree with this interpretation of the press clause under original and modern jurisprudence, but the theory is out there and not at all uncommon. I favor Volokh’s view, above.
Amy Jordan, The Right of Access: Is There A Better Fit Than the First Amendment?, 57 Vand. L. Rev. 1349 (2004).
This law review article asserts that the First Amendment is the wrong way to protect the right to gather information.
IV. General Resources for Normal Folks
These are resources that normal folks will find useful.
Radley Balko, The War on Cameras: It has never been easier—or more dangerous—to record the police, Reason: Free Minds and Free Markets, 22 (January 2011).
This article is the best recent treatment of the issue: a succinct survey of the issue in plain language, if somewhat one sided and incomplete.
David Rittgers, Maryland Wiretapping Law Needs an Update, Cato Institute (June, 2010)
Although this article was written before Graber won his case, this is a good article for those newer to the issue.
David Rittgers, Clark Neily & Radley Balko, Cops On Camera, Cato Institute (September, 2010).
A very accessible video by the Cato Institute along with Clark Neily from the Institute for Justice.
Recording the Police: Is Citizen Journalism Against The Law, Cato Institute (September, 2010)
Cato presents a forum for both sides to defend their positions on the Anthony Graber case. Video and audio at the link. Well worth watching, especially the arguments from the state’s attorney.