Recording in Public: Your Legal Rights When Filming Events and People

When almost everyone has a phone or tablet that can record audio and video, anything that happens in public is recorded by someone. The question that arises today is whether such recording is legal.

The short answer is, yes. Under the First Amendment, you can record in public under your right to freedom of speech and freedom of expression. The First Amendment protects you from government interference with your recording, but private property owners can still restrict recording on their property. If you’re recording a politician giving a stump speech or a neighborhood parade, you are covered by your constitutional rights.

Of course, even the First Amendment has limits. Even public places have areas that are off-limits. Some state laws prohibit recording unless all parties consent. In some cases, filming for commercial purposes requires permits from the city or venue. For instance, if you are recording a concert at the park, the band may require you to pay them if you post their performance on social media.

When you see something in the public interest, like a protest or police arrest, you may want to record it. Citizen journalists are a powerful tool in protecting everyone’s civil rights. As a citizen journalist, you must rely on your constitutional rights and state laws to protect yourself when recording events.

Your Legal Right to Record in Public

Along with free speech and freedom of religion, the First Amendment includes freedom of the press. Freedom of the press is broadly understood to mean anyone involved in gathering or distributing news to the public. This can include:

• Bloggers and vloggers
• Citizen journalists
• Social media users
• Small newspapers and websites

The same protections apply to you as to a news anchor with a major news agency. You can talk to people, record them, take photos, and, in general, act reasonably in an attempt to get information.

There is no such thing as a “licensed” journalist. Venues or events may issue press credentials to individuals for access, and those may be limited to reporters from recognized outlets. But you have the same legal rights to record an event as any other journalists.

Consent to Record

Before you start recording, check your state’s consent laws. Some states have “two-party consent” laws. In these states, both parties must consent to be recorded before you can record a conversation. Although this usually applies to audio recording, it includes video recording if the subject is not aware they are being recorded.

The Federal Electronic Communications Privacy Act (ECPA) permits the recording of conversations as long as one party consents to the recording. In practice, this “one-party” consent means that you can record another person without their permission. One-party consent laws prohibit recording any conversation you are not part of, or wiretapping.

Fourteen states have enacted two-party consent laws.

• California

• Connecticut

• Delaware

• Florida

• Illinois

• Maryland

• Massachusetts

• Michigan

• Montana

• Nevada

• New Hampshire

• Oregon*

• Pennsylvania

• Washington

These laws require that both parties be informed of and consent to the recording.

*In Oregon, one-party consent is allowed for phone conversations, but two-party consent is required for in-person recording.

If you’re unsure about your state’s laws, or if you are recording a phone conversation in one state and your subject is in another state, it’s best to let everyone know you’re recording.

Public vs. Private Conversations

The basic standard for filming or recording anyone is whether the encounter is “public” or “private.” Privacy does not require closed and locked doors and drawn shades. Whether a location is public or private depends on whether the subject has a reasonable expectation of privacy while they are there.

This expectation of privacy has two parts.

• One is objective: Would a reasonable person believe the individual should have expected that others would not see or hear them when they were recorded?
• The other is subjective: Did the individual really believe they were not likely to be seen or heard at the time?

For example, if you are sunbathing naked in your backyard, you have a subjective expectation of privacy. It is your property, and you have no reason to think anyone will see you there. However, if your yard has no fence, and you have neighbors on three sides, you do not have an objective expectation of privacy, since any of your neighbors could walk out and see you at any time.

In a public setting, interviewing someone in a coffee shop might not be the most private location, since it is public and anyone could walk in. If you and your subject are sitting in a booth all the way in the back, speaking in low voices, and keeping your faces turned to the wall, you might have a subjective expectation of privacy, since you’re trying to remain unobserved.

The context of an event matters more than where and when it occurs. It may not be sufficient in a legal action to say, “The subject was in a coffee shop, so they had no expectation of privacy” in this context.

Public vs. Private Spaces

The question of “public” and “private” spaces is often one for law students and property owners to quarrel over. For citizen journalists, the line is clearer. In general, “public” is a place where everyone can go, and “private” is any place where some people can be excluded. But, as always, there are exceptions.

Public Spaces

Public spaces are just that: spaces where the public may go, assemble, and gather. Parks, streets, sidewalks, some public arenas, and some kinds of public transportation.

In public spaces, individuals have no expectation of privacy. You can record video of activity in a public space for your personal use. Filmmakers and others using the recordings for commercial use must either ensure individuals cannot be identified (such as by blurring or pixelating the image) or notify anyone entering the area that they may be recorded.

Publicly Accessible Private Property

Private property open to the public includes places like stores, restaurants, and theaters. You may be allowed to record in these spaces, but keep a few things in mind:

• The property owner, manager, or on-site supervisor can ask you to leave or stop filming.
• Although there is no “expectation of privacy” as there is in a private space, other patrons may object to your recording and have the manager ask you to stop.
• There may be legal issues if you show the name of the establishment in your video.

Best practice: Get permission from the owner before filming if your video shows anything besides yourself and your subject.

Private Spaces

Private spaces include people’s homes, doctors’ offices, hotel rooms, and any place where you reasonably expect to conduct your affairs out of sight of others. You cannot record inside private places without the express permission of the resident. In some cases, you cannot record there at all. For instance, courtrooms ban all forms of recording except for the official court recorder’s devices.

Hotel rooms are a unique type of private space. Although hotels and motels are privately owned public spaces, when someone rents a hotel room, they have an expectation of privacy within the room during the duration of their stay. Police need a search warrant to enter a hotel room, even with the manager’s permission.

Bathrooms, Locker Rooms, and Changing Areas

No matter where they are, bathrooms, locker rooms, and dressing rooms are private. Recording devices are prohibited in these areas, and attempting to film or record there is an invasion of privacy. In most states, recording any kind in bathrooms or locker rooms is a criminal offense.

Government Buildings

Government buildings cover everything from the local library to the state capital. Government buildings all have public areas and restricted areas. In most public areas, you can record freely. These areas include lobbies, entryways, and parking lots. Offices, courtrooms, and other areas may be restricted.

Courtroom restrictions involve the right to equal justice and due process. Other restrictions involve safety, security of sensitive material, and right to access. Journalists may have access to some areas upon request.

Privacy and Criminal Behavior

Violation of privacy is both a criminal offense and a civil cause of action (tort). Depending on your state, the offense may be a misdemeanor or a felony. It can also be part of other, more serious crimes. Common violation of privacy crimes include:

• Eavesdropping or recording confidential communication without consent in two-party states
• Video voyeurism (using hidden cameras to record someone in a bathroom or locker room)
• Stalking
• Digital intrusion (including revenge porn, online stalking, and blackmail)

Using lawfully obtained video or audio recordings for unlawful purposes may constitute other crimes. Although whistleblowing is a legitimate use of confidential material, using it the wrong way or releasing it to the wrong people can be charged as a crime.

Civil Violations

Just because there is no criminal charge does not mean there is no penalty for violating someone’s privacy. Invading someone’s privacy can cause emotional distress, reputational damage, and other civil harm. You can be sued for these civil violations and receive financial penalties that might make you wish you’d received a few months in jail instead.

Civil violations can include:

• Intrusion upon seclusion is the intentional intrusion into someone’s privacy. Peeping, wiretapping, hacking, or just prying into their lives in an offensive manner can violate their right to privacy.
• Public disclosure of private facts. Reporters don’t get to tell everything they learn about someone. If the private information is not of public concern and would be offensive to a reasonable person if revealed, then it should not be disclosed. The standard differs for public figures, but you may not learn sordid details about anyone and then publish them on your social media page.
• False light. Publishing any information that makes a person seem to say something or take a position they would not take. Nowadays, this may include using AI to artificially manipulate them into “saying” something they did not say.
• Right of publicity. Appropriating someone else’s image for commercial purposes is not illegal, but the other person can sue you for any profit you make.

Criminal Boundaries

As an ethical citizen journalist, there are things you cannot do, even filming newsworthy events and things that affect the public interest. You cannot:

• Publish anything involving children
• Enter bathrooms or changing rooms
• Record lewd and lascivious material (upskirt/downshirt material)
• Record individuals in private situations (no recording through bedroom windows)
• Blackmail, coerce, or defame your subjects

Using the cover of journalism to harass others, invade their privacy, or commit other illegal actions removes the journalistic protection and may subject you to civil and criminal penalties.

Protecting Yourself Physically and Legally

Legally, the best way to protect yourself is to avoid illegal recordings. When you set out to record newsworthy events, keep your camera visible and make it obvious you are recording. Know your state laws before you go out, and obey the rules of the venue where you film.

If you’re filming on the spur of the moment, such as breaking events or police arrests, use common sense and keep your wits about you. You have the legal right to record law enforcement officers in the course of their duties, but states have enacted laws limiting where and how you can do so.

If you do film police officers making an arrest or interacting with the public, keep some things in mind:

• You cannot interfere with the police while they are investigating a crime or arresting someone, no matter how you feel about the situation. Keep your distance.
• If you are told to step back, you should do so. Keep a “reasonable distance” from the officers, typically 20-30 feet. If police caution tape has been placed, stay behind it.
• Do not argue with police while you are recording.
• Pay attention to your surroundings. Police activity draws a crowd, and you could find yourself in the middle of a protest before you realize it.

If You Get Sued

Not everyone is happy to be on the other side of the camera. For every citizen journalist who exposes bad police practices or corrupt government officials, there’s one who angers a celebrity or annoys a local businessperson.

People can sue you if they had a reasonable right of privacy where you were recording, or if you took their photo and used it without telling them. Even if you meant no harm, you can still end up as a defendant in someone’s lawsuit, trying to explain why their image ended up on your social media page.

If you are sued, you need legal help from a personal injury defense attorney. These lawyers specialize in defending people in tort cases. In this situation, you may be able to explain what happened before your case goes to litigation.

Before, During, and After Filming

Before you set out, make sure you know your state’s specific laws on filming in public and semi-public venues. If you will be in a potentially volatile situation, have an exit route planned. Take someone with you as a spotter, since you will be looking through your camera.

Be obvious about recording, in one-on-one and public sessions. Anyone passing should know you are recording. This lets passers-by know that there is a likelihood they could be filmed.

If you are approached by law enforcement, remain calm and explain what you are doing. Simply state you are filming the event. If credentials are required and you have them, you should display them. In about 20 states, police may ask you for ID if they “reasonably believe” you have committed or may be committing a crime. It may be better simply to provide your ID than to argue with a police officer and risk arrest for obstruction or resisting.

After you’re done, make sure you preserve your data. Upload all recordings to a second device or to cloud storage as soon as possible. In volatile or evolving situations, consider livestreaming to ensure your recording is immediately saved to your media platform.

Before you publish or post any recording, double-check for accuracy and facts. Never post an interview or data without sources. Never alter your recording or post unsourced facts.

When to Get Legal Help

You should consider legal advice when you’re named in any civil lawsuit, even as a third party or as a witness or reference. Always get legal advice if any of these apply:

• You’ve been arrested or could face criminal charges
• Your equipment was seized or destroyed
• Police demand you surrender your password or release your footage
• You recorded evidence of serious misconduct, criminal activity, or both
• Your own or others’ civil rights were violated
• You are making a potentially high-stakes recording and must know your options

Types of Attorneys Who Can Help

You should look for certain types of attorneys in your area. You have state laws as well as federal laws to consider. Your attorney should be able to advise you on both types of laws.

• Civil rights attorneys. These are the ones you consult for help with First Amendment questions. They can also give you advice on violations of your personal civil rights, unlawful searches and seizures, and whistleblower matters.
• Criminal defense attorneys. If you are arrested at a protest or charged with violation of privacy, trespassing, or any other crime, you need a defense attorney immediately.
• Media law attorneys. Media lawyers can answer questions about interviewing government officials, protecting news sources, and the elements of defamation.