First Amendment jurisprudence supports the recognized right to film police activity as articulated by the circuits. Some commenting circuits have held the right is clearly established, while others have declined to extend their holdings so far. Practically, citizens are restrained from freely exercising their right to film police activity in public even in circuits that have found the right clearly established. Because reasonable restrictions have not yet been clearly articulated, such uncertainty will inevitably lead to a chilling effect on the otherwise protected activity. A national standard should affirmatively memorialize such a right, as well as articulate objective reasonable restrictions to prevent a chilling of a citizen’s exercise of valid First Amendment conduct.
Matthew Slaughter, First Amendment Right to Record Police: When Clearly Established is Not Clear Enough, 49 J. Marshall L. Rev. 101 (2015)