Recording police in public is protected by the First Amendment in most of the country — but audio recording laws, interference with police rules, and the Fourth Amendment rules on phone seizure create important limits. Here's what you need to know.
Multiple federal circuit courts of appeals have held that the First Amendment protects the right to record police officers performing their duties in public. The reasoning is consistent across circuits: gathering information about public officials is a form of free speech and press that has long been recognized as protected activity. A bystander filming police during a traffic stop, an arrest, or a confrontation is engaged in constitutionally protected conduct.
The First, Third, Fifth, Seventh, Ninth, and Eleventh Circuit Courts of Appeals have all recognized this right in some form. While the Supreme Court has not directly ruled on the question, the breadth of circuit court agreement means the right is well-established in federal law. No federal circuit has held that recording police in public is unprotected.
Police who confiscate your phone, delete your recordings, order you to stop filming without a valid legal basis, or arrest you for recording are typically violating both your First Amendment rights and, in some circumstances, your Fourth Amendment rights against unreasonable seizure.
You have a First Amendment right to record police officers performing their official duties in public spaces — as long as you are not physically interfering with their work, violating applicable audio recording consent laws, or recording in a location where there is no reasonable expectation of being observed by the public.
Standing on a public sidewalk and recording police officers making an arrest, conducting a stop, or engaging with the public is clearly protected. You do not need permission. Officers cannot order you to stop simply because they don't want to be recorded. Multiple courts have enjoined police departments from enforcing such policies.
Recording is protected. Interfering is not. If your recording requires you to enter a secured crime scene, step into the path of officers making an arrest, or otherwise physically obstruct official duties, police can order you back. The right to record does not override the authority to secure a perimeter or maintain a safe distance from an ongoing emergency.
In states with one-party consent laws for audio recording, you can generally record even if an officer orders you to stop — provided you aren't interfering. Courts have repeatedly held that officers cannot lawfully order bystanders to stop recording police activity in public absent genuine interference with police duties. An order to stop filming is not automatically a lawful order.
While video recording police is generally protected, audio recording is regulated differently in some states. Eleven states require all parties to consent to being recorded — including California, Florida, Illinois, Pennsylvania, and Washington. Recording police audio without their consent in these states may violate state wiretapping laws, though several courts have held these laws cannot be applied to recordings of police in public.
Two separate legal questions: Can police take your phone? Can police search its contents? The answers are different.
Taking your phone: Police generally cannot seize your phone simply because you were recording them. A seizure requires either your consent, a warrant, or a recognized exception to the warrant requirement (like arrest incident to a crime you committed). Seizing your phone to prevent you from recording is not a recognized exception — it is a First Amendment and Fourth Amendment violation.
Searching your phone: The Supreme Court settled this in Riley v. California (2014). Police cannot search the digital contents of a cell phone without a warrant, even when the phone is seized incident to a lawful arrest. The Court held that the digital content of a phone is categorically different from physical items found on a person, and that the privacy interests at stake require a warrant.
Deleting your recordings: If police delete recordings from your phone, that is both a potential First Amendment violation (retaliating against protected speech activity) and a potential evidence destruction issue. Document it immediately — note who deleted it, when, and what you observed. This can be the basis for a legal claim under 42 U.S.C. § 1983.
Even if you are legally correct that police cannot lawfully order you to stop filming, arguing the point forcefully in the moment can escalate a situation and result in arrest. You can comply in the moment while preserving your legal claim afterward. Compliance does not waive your rights. Document everything and consult an attorney after the fact.
Simon Glik used his cell phone to record Boston police officers arresting a man on the Boston Common. Police arrested Glik and charged him with violation of Massachusetts's wiretapping statute and disturbing the peace. A federal district court dismissed the charges. Glik then sued the officers for violating his First and Fourth Amendment rights.
The First Circuit Court of Appeals unanimously held that Glik's filming of police constituted a constitutionally protected right under the First Amendment. The court said: "The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public shares in this fundamental right." The open recording of police by a private citizen in a public place was protected regardless of whether Glik identified himself as press.
"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
— First Circuit Court of Appeals, 2011The ACLU of Illinois challenged a state wiretapping law that made it a felony to record oral communications without all parties' consent. The ACLU wanted to conduct a police accountability program that involved recording police officers. Illinois argued the law applied to this recording. The ACLU argued it violated the First Amendment.
The Seventh Circuit blocked enforcement of the law as applied to open recording of police in public. The court held that the First Amendment protects the right to make an audio and audiovisual recording of police officers performing their duties in public and that applying the eavesdropping law to such recordings was a content-based restriction subject to heightened scrutiny — and one that could not survive it. Illinois subsequently amended its eavesdropping statute.
Two separate plaintiffs in Philadelphia were arrested or physically interfered with while recording police officers in public. Both brought First Amendment claims. The Third Circuit held explicitly that the First Amendment protects the right to photograph and record police conducting their official duties in public.
The court rejected the city's argument that recording is only protected when done with a specific "expressive purpose" in mind. The court found that "the First Amendment protects actual photos, videos, and recordings, and it therefore must also protect the act of creating that material." The decision extended protection to all recording of police in public, not just journalism or advocacy.
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