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Free Speech

Second Circuit Joins Courts That Recognize First Amendment "Right to Record Law Enforcement Activity in Public"

Eugene Volokh | 8.17.2026 6:41 PM

From today's decision in Massimino v. Benoit, written by Judge Myrna Pérez and joined by Sarah Merriam:

We begin by joining a growing chorus of [eight of] our sister circuits that have recognized a First Amendment right to record law enforcement activity in public. {See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017); Sharpe v. Winterville Police Dep't, 59 F.4th 674, 680–81 (4th Cir. 2023); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017); American C.L. Union of Ill. v. Alvarez, 679 F.3d 583, 594–95 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995); Irizarry v. Yehia, 38 F.4th 1282, 1289 (10th Cir. 2022); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).} That right encompasses Massimino's recording of the exterior of a police station from a public sidewalk. {Exterior, as it is used throughout this opinion, means the areas visible from a publicly accessible area outside the police station.} …

The right to record law enforcement activity in public emerges from three foundational First Amendment principles. First, the First Amendment protects the creation of speech, not just the immediate act of expression. Second, speech on matters of public concern—and particularly discussion of governmental affairs—lies at the heartland of the First Amendment's protections. Finally, the First Amendment protects the public's right to gather and access information about the government. We take each principle in turn.

The First Amendment protects the acts of "creating, distributing, or consuming speech" in equal measure. In other words, the First Amendment encompasses the entire "speech process," and therefore extends far beyond the precise moment of expression. Necessarily so. Otherwise, "[i]t would make permissible the prohibition of printing or selling books—though not the writing of them."

This principle confirms that video recording falls within the protection of the........

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