You may not realize this, but the Supreme Court of the United States has possibly jeopardized one of your First Amendment rights: the right to record the police. While this right may mean little to you now, it could serve as a means of protecting your other rights and in keeping law enforcement accountable. Because of the right to record the police, we have documented footage of police brutality from Missouri to Louisiana. These recordings have sparked outrage and fueled a conversation around policing, race, and our country's values.
This Comment will track the development of the right to record the police through the circuit courts, to include the existence of an "artificial circuit split." Then, it will address the recent Supreme Court decision, Nieves v. Bartlett, in which the court required a plaintiff in a retaliatory arrest claim to plead and prove that the police lacked probable cause. Finally, it will combine these two topics to show that when the Court prioritized policing above protesting, and probable cause above constitutional rights, it thrust an icepick in the development of the right to record; and that instead, to protect this right and others, it should have adopted a framework practiced in several circuits, the Mt. Healthy Framework.
Christina Murray, Comment, Cameras Down, Hands Up: How the Supreme Court Chilled the Development of the First Amendment Right to Record the Police, 71 Mercer L. Rev. 1125 (2020).