Cursing and Recording Police Officers

By: Dee Wampler

State and Federal law strongly support freedom of speech but officers may not use force to stifle unwelcome criticism.

Recording police activity and engaging in public protests is fundamentally a “democratic enterprise” because it provides a check on those “who are granted substantial discretion that may be misused to deprive individuals of their liberties.”1

Even profane back talk can be a form of dissent against perceived misconduct. The U.S. Supreme Court held:

“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”2

Officers cannot constitutionally make arrest decision based on individual’s verbal expression of disrespect including foul language.3 Being called an “asshole” does not allow officers who are otherwise “expected to exercise greater restraint in their responses than the average citizen,” even if the comment might momentarily distract the officer from a traffic stop or questioning.5

The First Amendment rights of the public allow people to record, using cell phones, police activity. The stock of information from which members of the public may draw cannot be limited.6 The First Amendment “unambiguously” establishes the constitutional right to video tape police activities.7 There is a First Amendment right to “photograph or videotape police conduct.” In our democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.”8

1 Glik v. Cunniffe, 655 F3d 78 (1st Cir. 2011); Brazburg v. Hayes, 408 US 665 (1972).
2City of Houston, Texas v. Hill, 482 US 451 (1987).
3Bufkins v. City of Omaha, 922 F2d 465 (8th Cir. 1990).
4Copeland v. Locke, 613 F3d 875 (8th Cir. 2010).
5Gorra v. Hanson, 880 F2d 95 (8th Cir. 1989).
6First National Bank v. Belloti, 435 US 765 (1978).
7ACLU v. Alvarez, 679 F3d 583 (7th Cir. 2012).
8Walker v. City of Pine Bluff, 414 F3d 989 (8th Cir. 2005).