“V.I.P.” VIDEOGRAPHER INTIMIDATION PROTECTION: HOW THE GOVERNMENT SHOULD PROTECT CITIZENS WHO VIDEOTAPE THE POLICE

njdiver

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“V.I.P.” VIDEOGRAPHER INTIMIDATION PROTECTION: HOW THE GOVERNMENT SHOULD PROTECT CITIZENS WHO VIDEOTAPE THE POLICE

The free flow of information concerning public officials’ performance of their duties, widely disseminated to the citizenry, is important to the proper functioning of a democratic republic. Courts have traditionally recognized the important role of robust citizen oversight in maintaining public official accountability in First Amendment jurisprudence. As new media for recording and distributing information have arisen, the First Amendment’s protective embrace has consistently shielded users from criminal punishment for their communicative activity, regardless of the controversial nature of their subject matter. The propagation of smartphones with ever-greater audiovisual capabilities represents simply the latest phase in the evolution of electronic media, but some wary police and overzealous prosecutors have attempted to suppress citizens’ recording of public police activity using state wiretapping laws. Wiretapping statutes typically ensure this privacy by requiring the consent of one or all of the participants to a conversation, but for the consent requirement to attach as a preliminary matter, such a conversation must typically be private in a Fourth Amendment sense. The typical arrest scenario, performed by public officers in a public place, seemingly fails to fulfill this requirement. Accordingly, it is highly dubious whether such criminal statutes could ever be considered reasonable time, place, or manner restrictions on First Amendment activity.

 

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