Tuesday, May 17, 2011
Michael Potere has posted Who Will Watch the Watchers?: Citizens Recording Police Conduct (Northwestern University Law Review, Vol. 106, 2012) on SSRN. Here is the abstract:
Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit recording any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not "clearly established." This Note argues that the right to monitor police and report misconduct is a clearly established, if not fundamental element, of American policing. It also argues that arresting and prosecuting individuals that record police conduct is an unconstitutional prior restraint on speech.