Legal Limbo: The Fifth Circuit's Decision in Turner v. Driver Fails to Clarify the Contours of the Public's First Amendment Right to Record the Police

Abstract

On February 16, 2017, the U.S. Court of Appeals for the Fifth Circuit, in Turner v. Driver, held that the public has a First Amendment right to record the police that is subject only to reasonable time, place, and manner restrictions. Although Turner established that the public has a First Amendment right to film the police, the decision skirted the question of whether the particular conduct in Turner—video recording police activity and/or video recording the police station—was an activity protected by the First Amendment. This Comment argues that the Fifth Circuit erred in not clarifying the contours of the First Amendment right to film the police. Given the rise in smartphone usage, the public’s ability to quickly disseminate videos to a large audience on social media, and the campaigns encouraging the public to record the police, the Fifth Circuit should have provided stronger guidance for the public on how to confidently exercise their First Amendment right to record the police in Turner.