Bill Introduced That Would Codify The Right To Record Federal Law Enforcement Officers

from the better-late-than-never dept

Good news! (Maybe?) Federal legislators have introduced a bill that, if passed, would finally guarantee the right to record law enforcement officers. Here’s Reason’s CJ Ciaramella with the details:

Sen. Richard Blumenthal (D–Conn.) and Rep. Maxwell Frost (D–Fla.) introduced the “Right to Record Act of 2026,” which they say would create new consequences for individual federal officers who violate a person’s First Amendment right to document and record police.

The legislation would create a right to sue a federal law enforcement or immigration officers who engage in wide range of retaliatory behavior, including threatening and harassing videographers, surveilling them, and seizing and destroying their equipment.

So, there’s a lot to discuss here. First off, the only reason a bill like this is necessary is the current iteration of the Supreme Court. This court has repeatedly shrugged off cases that may have finally established the right to record law enforcement officers (and other public officials). Most (but not all!) lower courts have already established this right.

The Supreme Court is the holdout. Maybe that’s just because it doesn’t feel it’s necessary to step in when the issue seems to have been pretty much settled at the district level. If that’s the case, the excuse is lazy and convenient. It takes the Supreme Court to fully settle an issue when there are outliers bucking against the trend. So far, it has refused to do so.

Next up is the caveat in the introduced law: it only affects federal law enforcement officers.

While it would be nice for the proposed law [PDF] to codify the right to record any law enforcement officer, there are good reasons for introducing the bill with this specific wording.

One of the compelling reasons has been created by federal officers, especially those engaged in Trump’s mass deportation efforts. Not content to simply overreact to protests and friction with violence and actual murders, officers have been witnessed deliberately targeting journalists and observers for the obvious reason of deterring further recordings and seizing/destroying what’s already been captured.

The lawmakers cited recent allegations of federal officers targeting videographers in New Jersey, Memphis, and elsewhere across the country, as well as the importance of video evidence in refuting the false government narratives of several shootings of U.S. citizens by immigration agents.

[…]

[D]epartment of Homeland Security (DHS) officials have repeatedly suggested that [recording officers] is doxing and obstruction of justice. Over the past two years, videos from around the country—from Oregon to Maine to the Florida Keys—have shown federal immigration agents arresting or threatening to arrest people for filming them.

This right needs to be recognized if it’s going to mean anything when federal officers violate it. That brings us back to this same Supreme Court, which in recent years has made it impossible to successfully sue federal officers for violating rights. Part of this is due to this version of court steadily narrowing the Supreme Court’s 1971 Bivens ruling to allow lower courts to immediately reject anything that doesn’t exactly match the facts of the original case.

The rest of it is due to this court’s conservative majority having almost no interest in establishing rights, while being more than happy to eliminate rights that have been recognized for decades.

That’s the other meaningful part of this bill: it creates a cause of action the courts can’t just shrug off. If it is shown the “right to record” has been violated, individual officers and their employer (the US government itself) can be held liable for these violations. The bill’s text also eliminates the federal government’s “sovereign immunity” option, which means it has to take the loss if its employees are ruled to have violated this right.

This is Congress beating the Supreme Court at its own game. The nation’s top court loves to tell citizens whose rights have been violated that if they don’t like the fact federal officers are 99.9% immune from civil suits they should take it up with Congress. Well, Congress is taking it up. And if the bill becomes law (which seems extremely unlikely), the Supreme Court (and lower courts) can’t talk their way around the rights violations by pretending (1) the right isn’t established or (2) the remedy lies elsewhere.

The bill provides a long list of actions that are presumptive violations of the right to record. This includes everything from merely trying to deter recordings to threatening observers, pursuing them to other locations, placing them under surveillance, or demanding to see their identification. That’s not the entire list either. It also covers attempts to seize or destroy recordings and engaging in any actions that appear to be retaliatory.

In the current climate under the current administration, there’s almost zero chance this will be passed by Congress. But this administration won’t last forever (assuming this Republic can be kept). And this effort needs to be made, even if it results in little more than more congressional reps and federal officials going on record expressing their disdain for the public and their rights. As long as this Supreme Court retains its current makeup, the best option may be legislation, rather than litigation. This puts the administration on the defensive and calls the Supreme Court’s bluff.

Filed Under: 1st amendment, bivens, free speech, maxwell frost, police misconduct, richard blumenthal, right to record, rights violations