While the United States Circuit Courts are not required to keep their precedents in synch, there are times when they should be. So-called “circuit splits” arise when the circuit courts divide themselves in a way that creates two competing schemes of caselaw. The core question of the split addressed in this Comment is whether or not there is an established First Amendment right for civilians to record police officers in public and, if so, whether that right ultimately defeats the doctrine of qualified immunity. The majority of circuits hold there is, while the minority point of view holds there is no such established right. Although the courts can mend the split themselves, this Comment advocates for the Supreme Court of the United States to assert its power as the highest court in the land and conclusively mend the split by holding that citizens have a right a right to record police officers in public pursuant to the First Amendment. Uniformity, efficacy, and percolation are advanced when the circuits are aligned. Moreover, the Supreme Court has the power to bind all courts—whether they have spoken on an issue or not. Public policy concerns, like officer accountability and the societal inequalities pertaining to the dissemination of information, and the essential foundations of our Constitution require the Supreme Court to enforce what most circuit courts already hold: First Amendment protections afford Americans the right to film law enforcement as we find them.
Lights, Camera, Action . . . As Long As You Live in the Proper Circuit: An Analysis of the Circuit Split Concerning Civilians’ First Amendment Right to Record Police Officers,
SMU Sci. & Tech. L. Rev.