DHS claims its 'illegal' to film ICE agents, federal courts and First Amendment say otherwise
Videos posted to social media show ICE agents in Minnesota telling observers to stop recording, while some say they've been detained for filming - but federal courts have ruled it's not illegal
Several videos posted to social media show ICE agents in Minnesota telling observers to stop recording, while some observers say they've been detained simply for filming - but the problem is, it’s not at all illegal to film agents as long as you’re not obstructing.
A DHS bulletin released last June labeled the use of cameras, live-streaming interactions with officers, and video recording at protests as "unlawful civil unrest" strategies and "threats." Immigration agents have also arrested dozens for supposedly obstructing arrests by filming.
However, Federal courts, including the 1st, 3rd, 5th, 7th, 9th, 10th and 11th circuits, have determined that the First Amendment safeguards the rights of individuals to record law enforcement officers carrying out their duties in public.
DHS' own policy, as stated on their website, allows the use of video recording: "Electronic Recording. This policy strongly encourages the use of video recording to satisfy the presumption. Audio recording may be used when video recording equipment considered suitable under component policy is not available."
However, U.S. District Judge Hernan A. Vera ruled last week that DHS has implemented a policy that appears to violate the Administrative Procedure Act.
"Plaintiffs have plausibly and sufficiently alleged a decision to adopt a policy with regards to how DHS treats the recording of its agents," Vera stated. Additionally, every federal Circuit Court of Appeals that has examined this matter has held that "there is a First Amendment right to record police activity in public," citing a 2017 decision from the Third Circuit.
In fact, last summer, a DHS Assistant Secretary for Public Affairs declared in an official statement, "videotaping ICE law enforcement and posting photos and videos of them online is doxing our agents... [We] will prosecute those who illegally harass ICE agents to the fullest extent of the law."
Though official figures for these detentions aren't publicly available, ProPublica documented at least 130 Americans - including no fewer than 12 elected officials - who've been taken into custody for purportedly obstructing and filming agents. However, the majority of ICE's civilian arrests for supposedly interfering with or assaulting agents have been dismissed, ProPublica found.
The National Coalition Against Censorship has regularly launched public awareness efforts to inform Americans that "yes, you have the right to film ICE."
The NCAC reiterated this message on Tuesday, following the circulation of footage showing agents instructing witnesses to stop recording.
"We join together as nonprofit civil rights and free expression advocates to condemn the Trump administration's statements that it is illegal to record videos of ICE agents. These claims are incorrect as a matter of law, directly contrary to our First Amendment values, and deeply troubling for democratic governance," stated NCAC.
The Cato Institute, a libertarian organization, has been one of the outspoken critics of ICE's arrests of individuals for filming law enforcement officers.
Along with organizations like the ACLU, Cato asserts that these arrests are unconstitutional, and accuses ICE of having a "systematic" method of detaining those who document agents' arrests.
