Knowledge is Power: The Fundamental Right to Record Present Observations in Public

Travis Gunn

Americans seeking to record public life often find themselves victims of government suppression. Police have used physical methods to prevent journalists from recording public protest events. Police have trained their guns on unarmed citizens for recording their activities in public. Citizens have been arrested for recording police officers’ public conduct. Claims of police destroying recording equipment and erasing recorded material are common. These events are not new, they happen often, and they occur throughout America.

The United States currently lacks a judicial check on this suppression. To protect against this assault on the acquisition of knowledge, courts require—and America needs—a properly founded constitutional protection. The Fourteenth Amendment is the source of that protection; through it, every American has a fundamental right to record.

Substantive Due Process and the Nontextual Right Analysis

The Fourteenth Amendment protects against deprivations of “life, liberty, or property, without due process of law.” Substantive due process is the concept that some life, liberty, and property interests are so fundamental that no process, regardless of procedural protections, could constitutionally result in their deprivation.1 Substantive due process protects different types of interests, including fundamental liberty interests not found in the Constitution’s text. The right to record is such a nontextual liberty interest.

The Court has used a “historical tradition” analysis to evaluate whether a liberty interest is fundamental. This method of analysis “test[s] the asserted claim of constitutional protection … against the Nation’s traditional treatment of the claim.”2 The historical tradition method distinguishes as fundamental those liberty interests so “deeply rooted in this Nation’s history and tradition,” that they are “implicit in the concept of ordered liberty.”3 Each aspect of the right to record will be analyzed under this standard, thereby establishing the right as a deeply rooted American tradition. This will categorize the liberty interest as fundamental. The right to record is as follows: a citizen has a fundamental right to record with a mechanical device all observations within public space legally observable by that individual.


I.
A Right to Record by Mechanical Device

Observation is perceiving physical reality. Recording is making that observation permanent. Recording can be accomplished naturally or by mechanical device. Analyzing this element of the right to record requires two separate lines of discussion. First is a focus on the historical treatment of mechanical recording. Second is a focus on the tradition of protecting natural recording and why that tradition extends to mechanical recording.


A.     Historical Treatment of Mechanical Recording

The ability to record observations by mechanical device became readily available to the public with the snap camera’s invention in 1884. The populace could easily and affordably take candid photographs in public with the snap camera, making it immensely popular. A negative response to public recording originated with the bourgeois and culminated in the Warren and Brandeis article The Right to Privacy. Warren and Brandeis advocated against publication of one’s “inviolate personality” through the right “to be let alone.” Though legal authority was initially scant, by 1950 most states recognized the privacy tort in at least some form. Concurrent with judicial action, states passed privacy statutes.4

Although judicial and legislative privacy protections were not uniform, they shared a concern regarding divulging a person’s privacy. These protections did not focus on acquiring—recording—the individual’s “inviolate personality.” Indeed, in 1960 William Prosser identified only one tort pertaining to acquisition, limited to nonpublic intrusions.5

America’s near-universal acceptance of the right to privacy never encompassed a rejection of the right to record within public space. This long-valued freedom was undercut only when state legislatures reworked their recording statutes to reflect the framework of the Federal Omnibus Crime Control and Safe Streets Act of 1968. This federal legislation was fashioned to mimic the judicial standard in Katz v. United States—which addressed government actors recording citizens. Therefore, constraints on government conduct were inappropriately used to undermine the citizenry’s long-standing ability to mechanically record in public.6

Though this liberty right is well established on its own merits, it also arose from a more basic concept. Individuals can observe and record things in public by natural means.


B.     Natural Recording—Humans Observe via the Body

The human brain uses the body’s sensory receptors to observe physical reality. This process of natural observation is so innate that it transcends tradition altogether. However, natural observation encompasses not only the acquisition of observations, but also protection against deprivations of the ability to perceive. Preventing natural observations has long been antithetical to this nation’s traditions and values. This is showcased when evaluating situations where, historically, such deprivation was possible.

Citizen conduct. American tradition has long prohibited private conduct that deprives fellow citizens of their senses. This intrusion upon an individual’s bodily integrity has long been subject to the common law action for battery. Similarly, early English law established the common law criminal prohibition against such deprivation as “mayhem.” Historically, most American states adopted mayhem as a statutory offense, but it has largely been subsumed by other criminal offenses.

Government actors. Government actors—typically police officers—traditionally retain immunity from liability for tortious conduct when lawfully discharging their duties. Equally long-standing is that government agents are liable for tortious conduct when acting beyond their duties. It is sufficient for purposes here to acknowledge that some government action resulting in sensory deprivation can lead to liability.

Government-imposed punishment. The 1791 ratification of the Eighth Amendment to the Constitution prohibited infliction of “cruel and unusual” punishment. Prior to ratification, states used this language to proscribe “the imposition of torture and other cruel punishments.” Beginning at the turn of the nineteenth century, state legislatures shifted away from corporal punishment and public humiliation. By 1910 there was widespread state recognition that some corporal punishment, such as cutting off limbs and ears, was unconstitutional. And early Eighth Amendment jurisprudence prohibited barbarous methods of punishment.

Thus considered, this nation has long valued protecting the natural ability to use the body to observe physical reality. The focus here is on the protection itself; no rationale for that protection is presumed. The scope and history of this protection establishes natural recording observations as enshrined in American history and tradition.


C.     Natural Recording—Humans Record via Memory

The subsequent recording step is to make observations permanent. As the body provides the mind a vehicle to observe reality, the mind keeps those observations permanent. The mind therefore records observations by the natural method of memory.

Natural recording is deeply engrained in American values. John Locke once recognized: “[T]he inward persuasion of the mind …. cannot be compelled to the belief of anything by outward force.”7 Protection against government control of the individual’s mind was fundamental and widespread when government had no means to pervade the mind. This inability indicates why, as a practical matter, no prohibition against such government intrusion existed. Nevertheless, the sanctity of the mind was a value enshrined in the Constitution. The Court has acknowledged the freedom of thought as “the matrix … of nearly every … form of [constitutional] freedom.”8 The freedom of thought, and thus the freedom of memory, is a fundamental American freedom with near-universal agreement.


D.     The Tradition of Natural Recording Extends to Mechanical Recording

The history of natural recording shows a long-standing American tradition of protecting that process. This deeply rooted value extends to mechanical recording because of substantial similarity between the two different modes of recording. Mechanical recording devices utilize technology to replicate the natural human methods of observation and recording. Natural and mechanical recording share the core concepts of observation and recording, as well as the substance of the recording. What potentially distinguishes the two methods are differences in their nature and application.

Format. One distinction is format. Natural recording utilizes the body and mind, whereas mechanical recording uses magnetism, digital devices, electrical charges, and other scientific developments. This does not compel distinguishing the two methods of recording. The mechanical format, when it replicates the natural process, does not change the substance of what is recorded.

Limitations. The scope of recording can be limited in duration and focus, and mechanical issues may undermine clarity. These issues speak to the quality of mechanical recording, which should be vulnerable to questions of reliability. This does not distinguish, but instead parallels, issues associated with natural recording reliability.

Bias and manipulation. A recording is one person’s observations—inherently imbued with subjective bias—made permanent. The right to record is to make permanent the bias otherwise captured by natural recording. Similarly, recordings can be manipulated, but both methods of recording are subject to this misuse.

Legal fiction. Mechanical recording that captures the same physical reality as an individual’s observations is not actually the same recording as the naturally recorded observations. It is instead a substitute—one that might not precisely capture the individual’s observations, and may capture more than the natural observation. These are not substantial distinctions.

First, the “actual difference” distinction is unimportant. The physical reality being recorded is the same regardless of the recording method. The change in perspective does not alter the shared substance being recorded. Second, the “greater quantity of recorded material” distinction is insignificant. Because both the individual and mechanical device are present, both recording methods have the ability to record the exact same observations. The right to record requires the mechanical device to capture something that natural recording also observed. Happenstance may alter the precise substance recorded but cannot characterize the methods of recording as entirely distinct.

Differences between the two methods of recording exist. These differences, however, do not significantly distinguish the two methods. The deeply rooted American tradition of preserving natural recording extends to the right to record by mechanical device.


II.
All Things Within Public Space

The right to mechanically record is limited to observations within public space. The distinction between public and private can be tracked along notions of property rights. The Court heralded the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” and added that the right to exclude is “universally held to be a fundamental element of the property right.”9 The ability to exclude distinguishes the physical boundaries of the right to record. The right to record does not extend to locations where a private owner can exclude members of the public who wish to exercise their constitutional rights.


III.
Legally Observable by a Private Citizen

The individual’s ability to move freely in public has never been absolute. The right to record does not establish such an absolute freedom; it merely enables citizens to mechanically record what can be naturally observed. The ability to naturally observe is restricted by the ability to move within public space.

Traditional protections of natural recording make apparent which public observations fall within the right to record. Natural observation is protected from government infringement exceeding the reasonable exercise of government duties. The principle that some deprivation is impermissible extends to the right to record. But because the right to record is a fundamental right, direct deprivations are subject to strict scrutiny review10 and not a “reasonable exercise” analysis.

Related is the ability of government actors to dictate that an individual may not legally be within a public space. This indirectly frustrates the right to record by restricting the ability to record specific public observations. Such constraints are valid to the extent the restriction targets a legitimate purpose other than infringing the right to record. If the location restriction is implemented to target the right to record, then the restriction is akin to direct deprivation and subject to strict scrutiny review.

Conclusion

A citizen has a fundamental right to mechanically record all legal observations within public space. This liberty interest was first established in 1884 and later developed by both common and statutory law until legislatures inappropriately restricted it eighty years later. The right is further established as fundamental due to its substantial relation to the American tradition of valuing and protecting natural recording. The right to record is thus a fundamental right under the Fourteenth Amendment.

Acknowledgements:

Travis Gunn, J.D. Candidate 2013 William & Mary School of Law; B.A. 2008, College of Charleston.

  1. See, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986); see also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 419 (2010).
  2. Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L. Rev. 63, 92 (2006); see, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997); Michael H. v. Gerald D., 491 U.S. 110, 124-27 (1989) (plurality opinion); Bowers v. Hardwick, 478 U.S. 186, 192-95 (1986); Moore v. City of E. Cleveland, 431 U.S. 494, 503-06 (1932) (plurality opinion).
  3. Glucksberg, 521 U.S. at 721.
  4. See Don R. Pember, Privacy and the Press 75-76 (1972); Neil M. Richards & Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, 96 Geo. L.J. 123, 148 (2007).
  5. See William L. Prosser, Privacy, 48 Calif. L. Rev. 383, 389 (1960); see also Seth Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 352 (2011) (reviewing the development of “‘privacy torts’ that constrain[ ] the capture and dissemination of images,” and noting that the Prosser-identified tort against image acquisition “provides relief only against images involuntarily captured within the target’s own home or in facilities remote from the public”).
  6. Jesse Alderman, Police Privacy in the iPhone Era?: The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian’s Right to Record Public Police Activity, 9 First Amendment L. Rev. 487, 493 & n.18 (2011) (discussing how Katz shaped federal legislation); Michael Potere, Note, Who Will Watch the Watchmen?: Citizens Recording Police Conduct, 106 Nw. U. L. Rev. 273, 282-83 (2012) (discussing how federal legislation shaped state recording statutes).
  7. John Locke, Two Treatises of Government and a Letter Concerning Toleration 219 (Shapiro ed., 2003).
  8. Palko v. Connecticut, 302 U.S. 319, 326-27 (1937); see also Wooley v. Maynard, 430 U.S. 705, 714 (1977).
  9. Kaiser Aetna v. United States, 444 U.S. 164, 176, 179-80 (1979).
  10. Glucksberg, 521 U.S. at 766-67 (Souter, J., concurring); see also Grutter v. Bollinger, 539 U.S. 306, 326 (2003) (defining the strict scrutiny analysis). See generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1283-84, 1315-16 (2007) (discussing the strict scrutiny analysis in the context of the Due Process Clause).

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