Although the proliferation of video footage documenting police misconduct has cemented a public expectation that individuals have a First Amendment right to film officers, the right to record law enforcement remains unsettled and under threat. This Note undertakes a comprehensive survey of every federal appellate decision on the right to record, revealing a fragile consensus that the right exists, coupled with pervasive uncertainty about its contours. Despite growing recognition of the right, this Note argues that it cannot be fully vindicated due to qualified immunity, a Supreme Court that is deferential to law enforcement, and disagreement among the judiciary regarding the limits of the right. State legislatures have exploited this ambiguity and uncertainty, proposing and enacting buffer-zone laws and other restrictions that criminalize and chill the act of filming police. Given the importance of the right to record and the patchwork of conflicting federal, state, and local laws, a federal solution is needed. Drawing on successful statutes in Colorado, New York, and California, as well as lessons from failed restrictions, this Note proposes model legislation that would clearly define and robustly protect the right to record.
