In some states, such as Illinois, using the video camera on your cell phone to record police misconduct may violate the state’s eavesdropping laws, and land you in jail.  Of course, the inequity in this is apparent, since police departments routinely use video surveillance to record the public.  While doing so may help protect the community on the one hand, on the other it is vitally important for the community to be able monitor the police in order to curb abuses of police power – so much so, in fact, that the First Circuit recently pronounced that there is an unambiguous and clearly established First Amendment right to videotape the police carrying out their duties in public.

In fact, in First National Bank v. Bellotti, 435 U.S. 765, 783 (1978), the U.S. Supreme Court held that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

In recognizing the clearly established constitutional right to videotape the police, the First Circuit concluded that “[g]athering information about government officials in a form that can readily be disseminated to others served a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.”

Indeed, over 30 years ago, in Bellotti, the U.S. Supreme Court declared that “freedom of expression has particular significance with respect to government [activities] because … the state has a special incentive to repress opposition and often wields a more effective power of suppression.”

In view of this authority, it is no surprise to learn that the ACLU of Illinois has raised a constitutional challenge to the Illinois statute prohibiting the public from recoding police misconduct.

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