Volume 108

Recordings as Heckling

by Scott Skinner-Thompson

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and can also serve as direct, expressive resistance to surveillance regimes.

As this Article explains, once the First Amendment values of both the right to record and the right to privacy are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes-competing forms of “speech,” permitting citizen recording of police and allowing government regulation of certain recordings that breach the privacy shields of other citizens.

Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, the government may limit the ability to record when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression). The heckling framework underscores the idea that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally grounded path for adjudicating those interests.

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