VIDEO/AUDIO RECORDING IN PUBLIC SPACES This month's

VIDEO/AUDIO RECORDING IN PUBLIC SPACES

This month’s Melissa Talks will cover a topic that has sparked a lot of conversation as well as led to many

viral videos online. Today, we are talking about audio and video recording in public and private places. This

is a really meaty topic so I will try to capture as much as I can in this short call.

First, lets start with a scenario. You are sitting at the front desk in the enrollment office on a regular Monday

morning. A few minutes into reading and responding to emails, you see someone holding their cell phone

up to their face, the camera light is on, and you realize they are filming you. As soon as you catch their eye,

they start into a monologue about the neoliberal education being taught at the college and how students are

being indoctrinated. They continue to record you and your colleagues as you sit at your desks. You are

paralyzed with fear because you don’t know how to react. Situations like this are becoming more and more

common, so today we are going to talk about video and audio recording in public and private spaces.

What is the definition of a public space?

A public place is generally defined as an indoor or outdoor area, whether privately or publicly owned, to

which the public have access by right or by invitation, expressed or implied, whether by payment of money

or not.

Outdoor Public Spaces

When someone is in an outdoor public space on your colleges (where they are legally present), they have the

right to capture any image that is in plain view, which includes pictures and videos of the outside of buildings

and even when police officers are engaged in their regular activities. This right exists for non-commercial

purposes. If the police approach the person taking the video/photos they cannot demand they stop or that

the person delete the pictures/video.

Police officers may order those who are video recording to stop doing so if they truly believe that the person

is interfering with legitimate law enforcement operations. In general, a court will trust an officer's judgment

about what is "interfering" more than yours. Police officers may not generally confiscate or demand to view

your photographs/video or search the contents your cell phone without a warrant. In addition, it is possible

that courts may approve the seizure of a camera in some circumstances if police have a reasonable, good-

faith belief that it contains evidence of a crime by someone other than the police themselves but they would

still need a warrant to view the evidence.

Indoor Public Spaces

The law distinguishes between a traditional public forum, or public square, and facilities opened to the

public for a particular use or purpose, like a library or a courthouse. Facilities like libraries and courthouses

are considered to be limited public forums or non-public forums for purposes of the First Amendment. In

limited or non-public forums, the government agency administering the space is only obligated to allow

those First Amendment activities that are consistent with the nature of the forum, even if the facility is open

to the public. Non-public spaces in public buildings are those areas that are not open to the public or where

users have an expectation of privacy, such as washrooms, reservable private study spaces, offices, break

rooms, classrooms, and work areas. In these areas, recording should not be permitted.

Private Property

When you are on private property, the property owner sets the rules about the taking of photographs or

videos. If you disobey property owners' rules, they can order you off their property (and have you arrested

for trespassing if you do not comply).

Public Meetings

Arizona’s open meetings law provides that “[a]ll or any part of a public meeting of a public body may be

recorded by any person in attendance by means of a tape recorder or camera or any other means of sonic

reproduction, provided that there is no active interference with the conduct of the meeting. (See, ARS 38-

431.01(F).

Indoor Private Spaces

When you are on private property, the property owner sets the rules about the taking of photographs or

videos. If you disobey property owners' rules, they can order you off their property (and have you arrested

for trespassing if you do not comply). The fact that the District is a political sub-division does not mean that

all buildings are open to the public. Depending on the location a person wishes to enter, their right to record,

let alone access, may be constrained by reasonable time, place, or manner restrictions, or by the District or

college’s interest in managing its property.

Audio Recording

You have a right to capture images in public places, but you don't always have a right to record what people

say. Conversations with police in the course of their duties are not private conversations, but many other

things you may record on a public street are. Arizona makes it a crime to intercept a "wire or electronic

communication" or a "conversation or discussion" unless you are a party to the communication, present

during the conversation or discussion, or one party to the communication or conversation consents. (ARS

13-3005-2012(9). This means a person may record a conversation or phone call if they are a party to the

conversation or you get permission from one party to the conversation in advance—otherwise known as a

one-party state.

The wiretapping law covers oral communication

s when the speakers have "an expectation that the

communication is not subject to interception under circumstances justifying the expectation," (ARS 13-

3001). Therefore, someone may be able to record in-person conversations occurring in a public place, such

as a street or restaurant, without consent but a person should seek the consent of one or all of the parties

before recording any conversation that an ordinary person would deem private.

Violating this law is punishable by imprisonment and a fine. In addition to this, there is also the possibility

of a civil lawsuit for damages by the injured party.

First Amendment “Audits”

It is a fairly recent phenomenon and looking at these audits on a surface level, a first amendment audit may

appear to be a both innocuous and even pointless, but there is much more happening beneath the surface.

These audits are a form of activism where an individual ‘armed’ with a camera will simply walk into a public

space and start recording. The crux of the audits focuses on th

e “auditors’” right to openly film law

enforcement personnel and other public officials. Once those audits are completed, the resulting video is

posted to social media and to websites, such as YouTube. These audits have taken place in such public spaces

as a college library, a police station/sheriff’s office, the post office, DMV, and the entrance of a military base

or other government facility or publicly owned space.

Frequently the simple act of walking into a space and filming causes people to act up and typically these

audits will involve an interaction with police, security, or other public employees or officials—and those

interactions can get very heated. The goals of a first amendment audit truly depend on the “auditor’s”

themselves. Some auditors see this as an opportunity to teach people about their rights and to protect those

rights—which includes enforcing what is in the Constitution. Other auditors see this as an opportunity to be

as abrasive as possible—sometimes in order to sell merchandise or to create “shock” videos to post on

YouTube and other platforms. First Amendment audits are not always a bad thing. In fact, there have been

reforms made with respect to police conduct as well as examples of where an audit has led to holding

government officials accountable for violating people’s rights. Many courts ruled, and the U.S. Department

of Justice has taken the position, that citizens have the First Amendment right to film police performing

their duties in public.

If you encounter a First Amendment audit, always maintain courtesy, respect, and be tactful and above all

else, please pay attention to behavior and conduct – not necessarily the recording itself. You can address the

behavior through our policies. Also remember, these audits can only be performed in public spaces and not

in offices, breakrooms, bathrooms, or any place where there is a reasonable expectation of privacy.

See e.g. Glik v. Cunniffe, 655 F.3d 78 (1

Cir. 2011); ACLU v. Alvarez, 679 F.3d 583 (7

Cir.

2012); Smith v. City of Cumming, 212 F.3d 1332 (11

Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436

Cir. 1995); Turner v. Driver, No.

[1]

16-10312 (5

Cir. 2017); Fields v. City of Philadelphia, 862 F.3d

353 (2017); Sharp v. Baltimore City Police Department, No. 1:11-cv-02888-BEL (D. Md. Statement of

Interest filed January 10, 2012)

If someone is conducting an audit or otherwise recording for commercial purposes, you do have the ability

to ask them

what the purpose of the recording is and if the recording or photos are being made for

commercial purposes (such as shooting a short film), you can instruct them to follow the existing policy.

Please see Administrative Regulation 1.5 Use of College Facilities.

Arizona HB 2319

This proposed law would make it a crime to film any police activity within 8 feet, unless law enforcement

gives permission to be closer. If the law enforcement activity is occurring in an enclosed structure on private

property, a person who is authorized to be on the private property may make a video recording of the activity

from an adjacent room or area that is less than 8 feet away from where the activity is occurring, unless a law

enforcement officer determines that the person is interfering in the law enforcement activity or that it is not

safe to be in the area and orders the person to stop recording or to leave the area. The penalty for breaking

this new law would be a Class 3 misdemeanor if the person filming does not comply with an order to

immediately cease recording. There are concerns that this law would violate the First Amendment, which

means we would have to see what the court decides, if a constitutional challenge is brought.

If you have any questions, please contact Melissa Flores at [email protected]opa.edu.

References:

First Amendment “Audits” and the Civilian Right to Film Law Enforcement (Part 1) (dlglearningcenter.com)

Arizona Recording Law | Digital Media Law Project (dmlp.org)

Recording Police Officers and Public Officials | Digital Media Law Project (dmlp.org)

Microsoft Word - HB2319P.docx (azleg.gov)

Arizona Revised Statutes § 38-431.01 (2021) - Meetings shall be open to the public :: 2021 Arizona Revised Statutes :: US Codes and Statutes

:: US Law :: Justia

Melissa Flores

MARICOPA COMMUNITY COLLEGES

Interim

General Counsel | Office of the General Counsel

2411 West 14th Street, Tempe, AZ 85281

Melissa.Flores@domail.maricopa.edu

https://www.maric opa.edu/

O: 480-731-8418 | M: 801-557-1657