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33 Notre Dame J.L. Ethics & Pub. Pol'y 337 (2019)
Qualified Immunity and the Clear, but Unclear First Amendment Right to Film Police

handle is hein.journals/ndlep33 and id is 345 raw text is: QUALIFIED IMMUNITY AND THE CLEAR, BUT UNCLEAR FIRST AMENDMENT RIGHT TO FILM POLICE DOOu SONG* INTRODUCTION On March 3, 1991, the Los Angeles Police Department shocked the nation when its officers were caught on videotape beating Rodney King in public.' The rare footage was made possible only because a bystander happened to be carrying a camcorder at the time. Now, with smartphone owners making up more than seventy-five percent of the U.S. population,2 the filming of police in public has become an everyday occurrence.' Specifically, a growing number of individuals are filming police to record instances of public arrest, to test officers' knowledge of the law, and to document their encounters for cop watch groups. ' While some recordings reveal commendable police work, others expose disturbing instances of police brutality, constitutional rights viola- tions, and even death.5 Many police officers have responded to being filmed by arresting the indi- viduals on criminal charges and even resorting to violence.6 Some of the arrests have been valid on grounds of officer safety, interference with police work, disorderly conduct, and invasion of privacy.7 However, other arrests have raised serious questions concerning the individuals' First Amendment right to free speech. That is, do individuals have a First Amendment right to record the activities of police officers in public? To what extent, if at all, does filming police activities constitute speech under the Free Speech Clause? What legal grounds do police officers have when they take action against individuals for filming them? Although the Supreme Court has yet to address these questions, most cir- cuit courts have recognized a First Amendment right to film police activities in public, subject to reasonable time, manner, and place restrictions.8 The spe- cific contours of the right, however, have not been clearly established enough * Candidate for Juris Doctor, Notre Dame Law School, 2019; Bachelor of Arts, Princeton Uni- versity, 2008. Thank you to my Note Advisor, Professor Jennifer Mason McAward, for her guidance and lessons in civil rights law. I would also like to thank Professor Randy Kozel and the Notre Dame Program on Constitutional Structure for their support in my efforts to learn more about the First Amendment. My thanks also go to the Notre Dame journal of Law, Ethics & Public Policy editorial board and staff for their assistance in preparing this Note. Finally, I would like to express my never-ending gratitude to my parents, Tae Hoon Song and Jin Sook Song. 1. Cydney Adams, March 3, 1991: Rodney King beating caught on video, CBS NEws (Mar. 3, 2016, 6:00 AM), https://www.cbsnews.com/news/march-3rd-1991-rodney-king-lapd-beating-caught-on- video/. 2. Mobile Fact Sheet, PEW RES. CTR. (Feb. 5, 2018), http://www.pewinternet.org/fact-sheet/ mobile/. 3. See Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. PA. L. REV. 335, 337 (2011). 4. See Timothy Roufa, Advice for Officers When Being Recorded, THE BALANCE (Oct. 11, 2016), https://www.thebalance.com/advice-forofficers-when-being-recorded-974554. 5. See Adams, supra note 1. 6. SeeJocelyn Simonson, Copwatching, 104 CALIF. L. REV. 391, 427-32 (2016). 7. See Geoffrey j. Derrick, Qualified Immunity and the First Amendment Right to Record Police, 22 B.U. PUB. INT. L.J. 243, 245 (2013). 8. See, e.g., Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 687-90 (5th Cir. 2017); ACLU v. Alvarez, 679 F.3d 583, 600-01 (7th Cir. 2012); Glik v. 337

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