In the court’s recent ruling in Massimino v. Benoit, authored by Judge Myrna Pérez with Judge Sarah Merriam joining,
we align with a growing chorus of eight of our sister circuits that have recognized a First Amendment right to record law enforcement activity in public. {See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Sharpe v. Winterville Police Dep’t, 59 F.4th 674, 680–81 (4th Cir. 2023); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017); American C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 594–95 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).} That right covers Massimino’s recording of the exterior of a police station from a public sidewalk. {Exterior, as used throughout this opinion, refers to areas visible from a publicly accessible vantage point outside the police station.} …
The right to record law enforcement activity in public arises from three foundational First Amendment principles. First, the First Amendment protects the creation of speech, not solely the moment of expression itself. Second, speech on matters of public concern—particularly discourse about governmental affairs—lies at the core of First Amendment protections. Finally, the First Amendment shields the public’s right to obtain and access information about the government. We examine each principle in turn.
The First Amendment protects the acts of “creating, distributing, or consuming speech” in an equal measure. In other words, the First Amendment encompasses the entire “speech process,” and therefore extends well beyond the precise moment of expression. Otherwise, “[i]t would make permissible the prohibition of printing or selling books—though not the writing of them.”
This principle confirms that video recording falls within the protection of the First Amendment, at least as a general matter. Viewing, possessing, and distributing videos are acts protected by the First Amendment. A necessary antecedent to those acts is recording a video in the first place; to distribute a recording, one must first create a recording. Thus, creating a recording is part of the speech process.
When the government prevents a person from recording a video, it prohibits that person from possessing, viewing, and disseminating that video. And when the government does so based on the content of the recording—for instance, because the recording depicts law enforcement activity—the government implicates the “most basic” First Amendment principle: “As a general matter, … government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Thus, the First Amendment protects the creation of a video depicting law enforcement activity in public.
That right rests on a second independent foundation as well. It is anchored in the bedrock principle “that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.”
There has long been “practically universal agreement that a major purpose of th[e] [First] Amendment was to protect the free discussion of governmental affairs.” In the daily lives of many Americans, “governmental affairs” is not an abstract concept; it is a badge and a uniform. When a citizen records public police activity, she creates speech concerning the state’s most immediate instrument for enforcing its laws. Speech of this kind “is more than self-expression; it is the essence of self-government.”
Lastly, the right to record law enforcement activity in public vindicates “the paramount public interest in a free flow of information to the people concerning public officials, their servants.” As the Supreme Court has explained, “the First Amendment … prohibit[s] government from limiting the stock of information from which members of the public may draw.”
Indeed, the First Amendment “has a structural role to play in securing and fostering our republican system of self-government.” “Implicit in this structural role is … the antecedent assumption that valuable public debate—as well as other civic behavior—must be informed.” As we have explained, “it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions.”
The right to record law enforcement activity in public sits squarely within these three principles. As the First Circuit has reasoned, “[a]n important corollary to th[e] interest in protecting the stock of public information is that ‘[t]here is an undoubted right to gather news from any source by means within the law.'” Recording law enforcement activity in public exercises that right.
We do not doubt that being recorded and exposed to public view while on duty may place additional strain on the challenging work of policing. But “[t]he risk of this exposure is an essential incident of life in a society that places a high value on freedom of speech and of the press.” That is especially true for law enforcement officers who serve, and wield significant power over, the very public who seeks to observe them as they perform their duties….
And the court concluded that this includes the right to record the exterior of a police station, even if, in the act, the observer captured some activity inside the station that was “publicly visible”:
Massimino may have recorded some areas of the building that were not open to ingress by the public. But Massimino has not claimed a right to physical access. Instead, he asserts a right to record and disseminate what was plainly visible from the public sidewalk—what any passerby standing in the same location could have observed. Those areas were accessible to ordinary observation by Massimino and any other passerby on the unrestricted public sidewalk.
{Nothing in the record suggests that Massimino used specialized technology to capture information that could not otherwise be observed from his lawful vantage point on the public sidewalk. We do not address a recording made through technology that reveals information not ordinarily perceptible from that location.}
The court noted, however, that it did not “decide whether the government may impose a properly tailored restriction directed at recording particular persons entering or leaving a station, nonpublic security features, or other information implicating concrete privacy or safety interests.”
Judge Reena Raggi declined to resolve the First Amendment right-to-record question, finding it sufficient to hold, as the majority did, that the right had not been clearly established at the time of these events, hence the police officers enjoyed qualified immunity:
As the majority notes, this court has thus far declined to decide “whether the First Amendment protects a right to record law enforcement activity in public.” We should not attempt to do so in this case, which involves very little “activity” of any kind, much less “law enforcement activity.” …
The vast majority of Massimino’s video shows no police officers at all—until the defendant officers approach. Instead, Massimino’s footage concentrates on the station’s exterior as he circles the building, occasionally lingering or zooming in on the main entrance; the side entrance to the station’s “Youth Division” (not generally open to the public); a rooftop security camera; and the semi-open garage through which police vehicles could be seen. At one point, a person in civilian clothes is briefly filmed outside the station’s main entrance. His identity and purpose are unclear. He does not appear to be engaged in or the subject of any police activity. At other times, three police vehicles appear briefly—one entering, one leaving the garage, and one in street traffic. While there may be circumstances where moving police cars reflect enforcement activity, that is not clearly the case here. Indeed, Massimino largely remains focused on the building’s exterior before returning to the exterior, where no active police work is visible….
In short, in a case where the plaintiff’s filming centered on a building rather than on “activity,” there appears to be no basis for the court to adopt a broad First Amendment right to record “law enforcement activity” occurring in public….
Dan Barrett, Elana Bildner, and Jaclyn Blickley (ACLU Foundation of Connecticut) represent plaintiff.
