Is filming an arrest a constitutionally-protected activity?

In my career, I have been asked to evaluate two cases in which our firm’s clients were arrested for merely filming the arrest of another person.  In one instance, our client was leaving a bar in Covington, Kentucky and observed another patron (whom he did not know) being arrested.  He whipped out his camera phone and filmed the arrest.  The Covington police arrested him merely for filming the confrontation.  In the second instance, our client was a “sidewalk counselor” outside an abortion clinic.  A fellow protester was being arrested, and he filmed the same with his video camera.  Again, he was arrested.

In both instances, the charges were ultimately dropped, and our firm was asked to evaluate the claim for a constitutional violation.  In both instances, the clients ultimately decided not to pursue the claims, but we determined that the filming of an arrest is protected First Amendment activity.

This Washington Post piece highlights the continuing problem of police agencies not understanding this developing constitutional right, and the resulting arrests.  It’s an interesting topic and one that certainly will develop more fully in the coming years.