Legal Briefings: Does your smartphone ‘sync’ with the First Amendment?

OPINION – A couple of months ago, John Stossel produced an hourlong story entitled, “Illegal Everything,” and the show highlighted a growing problem in modern American culture: police retaliation against smartphone-owning citizens who record law enforcement officers’ work. In fact, in some states, aging wiretap laws are being manipulated to retaliate against citizens who videotape law enforcement activity.

Evidently, some officers are not comfortable with having their work recorded and preserved for later viewing. But why? Most officers have dash-cams that record us. Why is video recording not necessarily a two-way street? And finally, just what does the Constitution have to say about smartphone devices that record police in real time?

Obviously, the Constitution is silent on high-tech gadgets, but constitutional principles remain steady as society and culture changes, which of course is the genius of our Constitution to begin with. Although the American Civil Liberties Union is not exactly popular in Southern Utah, (sometimes for good reasons), it has brought several important lawsuits against police agencies around the nation whose officers have arrested persons videotaping them and even seized and destroyed the recordings. Because of those lawsuits, some courts have ruled that “basic individuals possess a ‘constitutionally protected right to videotape police carrying out their duties.’”

So what part of the Constitution protects this right? How has the ACLU been successful? The “right to receive information and ideas” is included within the First Amendment’s free speech guarantee, as is the “right to gather information about government officials in a form that can be readily disseminated to others (to) protect() and promot(e) the ‘free discussion of governmental affairs.’” That makes sense, particularly when law enforcement officers are empowered with “substantial discretion that may be used to deprive individuals of their liberties.”

Thankfully, Utah law enforcement officers have remained faithful to these free speech provisions and have not engaged in censoring videotaping by smartphone devices. All of us should appreciate that, but at the same time, all of us should be aware of the threats which have become realities in our sister states. So yes, our smartphones “sync” with the First Amendment, even when law enforcement agencies believe otherwise.

Author:  Trevor C. Sanders, Esq.

Trevor C. Sanders is an attorney at Aaron J. Prisbrey, P.C. and a resident of Hurricane. He can be contacted with questions, comments, or concerns at:

Email: [email protected]

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Twitter: @STGnews

Copyright St. George News, LLC, 2012, all rights reserved.

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