First Amendment Limitations on Public Disclosure of Protest Surveillance

During and after last year’s expansive Black Lives Matter protests, police departments nationwide publicly shared robust video surveillance of protestors. Much of this footage rendered individual protestors identi­fiable, sometimes in ways that seemed intentional. Such disclosures raise First Amendment concerns under NAACP v. Alabama ex rel. Patterson and its progeny, including the recent Americans for Prosperity v. Bonta decision. Those cases limit how the government may collect and distribute sensitive associational information. Bonta raised the First Amendment bar by adding (or clarifying) a narrow tailoring requirement to the exacting scrutiny test for associational disclosures.

This Piece argues that wholesale dumps of unedited footage likely violate the First Amendment in at least some circumstances, including those of last summer’s Black Lives Matter protests. While the Supreme Court has insulated governmental collection of protest surveillance from First Amendment challenges via its standing doctrine, public dissemina­tion of such surveillance creates a cognizable injury that avoids standing obstacles. That injury is inflicted by governmental distribution of protest surveillance despite the public nature of protests, as protestors retain cer­tain privacy interests in the public square. And despite the strong gov­ernmental interest in transparency surrounding police–protestor interactions, blanket dumps of footage likely fail under exacting scrutiny when they render individual peaceful protestors publicly identifiable. Threat of identification chills protestors’ speech and assembly rights by subjecting them to threats of private retaliation like adverse actions by employers and violence by extremist militias. Bonta’s narrow tailoring requirement likely requires police to avoid identifying peaceful protestors by blurring out faces before releasing (or while livestreaming) protest footage and by not zooming in surveillance cameras for extended, close-range livestreaming of individuals.