“You Have a Constitutional Right to Record Public Officials in Public”

Ilya Shapiro and Devin Watkins:

In a case out of California, two citizens were taking pictures of border crossings from public sidewalks of what they believed were environmental problems and unlawful searches. CBP [United States Customs and Border Protection] agents saw them, arrested them, seized their cameras, and deleted their pictures. The district court acknowledged that the recordings were protected by the First Amendment but found the government’s reasons for suppressing them to be so compelling that individual constitutional rights could be ignored in the name of national security.

Now before the U.S. Court of Appeals for the Ninth Circuit, Cato has filed an amicus brief supporting the photographers’ ability to record government officials in public. Americans have a First Amendment right to record law enforcement agents because it’s a way of accurately depicting government operations. The ability to describe government operations allows citizens to criticize those actions and petition for redress of grievances—a core purpose of the First Amendment. Even a Homeland Security report on “Photographing the Exterior of Federal Facilities” recognizes “that the public has a right to photograph the exterior of federal facilities from publically accessible spaces such as streets, sidewalks, parks and plazas.”…

The Ninth Circuit will hear Askins v. U.S. Dep’t of Homeland Security later this fall.


  • Um, why are government lawyers defending this nonsense?

    And what does this case say about the routine collection of cellphones etc. when someone protected by the Secret Service is around?

    • The Secret Service is probably more worried about someone using a phone to trigger a bomb or signal assassins/terrorist attackers than their primary being filmed by a camera phone.

      • So what? It’s still a seizure. How does that fly under 4th Amendment?

        • True, but the case in the OP is about a first amendment issue, not a fourth amendment issue.

  • I’m with spo on this one. I was near an event where there was Secret Service protection. I was told that my cell phone would only let me dial 911 until the event was over. They either have some kind of jammer or control over the cell itself.

    • They most like have Stingray devices that act like a cell tower and can be programmed to do just that.

  • Frankly, I think the idea put forth by spo misses the point.

    This is not about communicating via a cell phone at any given moment.

    The case is about the ability to film a public figure in the performance of their duties as well taking pictures of public buildings.

    It is hard to say that the public does not have the right to film police, border security, etc in action.

    People want dash cameras and body cameras on officers but those cameras have often been conveniently turned off, erased, or corrupted when there is an incident.

    The bottom line to me is that if a person cannot stop photographers from filming in public places and the government can film people in public places, then the public should have the same right to film government actors who are in public.

    To deny the public that simple, basic ability puts government officials and the government itself above the common person when there is no cause to do so.