Duke Law Journal

Cell Phones, Police Recording, and the Intersection of the First and Fourth Amendments

Abstract

In a recent spate of highly publicized incidents, citizens have used cell phones equipped with video cameras to record violent arrests. Oftentimes they post their recordings on the Internet for public examination. As the courts have recognized, this behavior lies close to the heart of the First Amendment.

But the Constitution imperfectly protects this new form of government monitoring. Fourth Amendment doctrine generally permits the warrantless seizure of cell phones used to record violent arrests, on the theory that the recording contains evidence of a crime. The Fourth Amendment inquiry does not evaluate a seizing officer’s state of mind, permitting an official to seize a video for the very purpose of suppressing its contents. Moreover, Supreme Court precedent is typically read to ignore First Amendment interests implicated by searches and seizures.

This result is perverse. Courts evaluating these seizures should stop to recall the Fourth Amendment’s origins as a procedural safeguard for expressive interests. They should remember, too, the Supreme Court’s jurisprudence surrounding seizures of obscene materials—an area in which the Court carefully shaped Fourth Amendment doctrine to protect First Amendment values. Otherwise reasonable seizures can become unreasonable when they threaten free expression, and seizures of cell phones used to record violent arrests are of that stripe. Courts should therefore disallow this breed of seizure, trusting the political branches to craft a substitute procedure that will protect law-enforcement interests without doing violence to First Amendment freedoms.