Smith v. City of Cumming: Recording Police and the Circuit Split

In Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), the U.S. Court of Appeals for the Eleventh Circuit held that the First Amendment protects the right to photograph or videotape police officers performing their duties in public, subject to reasonable time, place, and manner restrictions. The court wrote that “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”¹ It is one of the earliest federal appellate decisions to say so, and it has been cited by nearly every circuit that has since taken up the question.²

What the Case Was About

James Soloman Smith, Jr. and Barbara Smith sued the City of Cumming, Georgia, and its police chief, Earl A. Singletary, under 42 U.S.C. § 1983. They alleged a pattern of harassment by Cumming police, and at the center of their First Amendment claim was the allegation that officers had prevented Mr. Smith from videotaping police activity.²

The U.S. District Court for the Northern District of Georgia granted summary judgment to the City and Chief Singletary. In doing so, it concluded that the Smiths had no First Amendment right to videotape police conduct in the first place.²

What the Eleventh Circuit Held

On May 31, 2000, the Eleventh Circuit rejected the district court’s premise. It held that the Smiths “had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct.”¹

The Smiths still lost. The court affirmed summary judgment because they had failed to prove under § 1983 that the defendants’ conduct actually deprived them of that right. The court also affirmed the denial of their motion to amend the complaint and rejected their remaining arguments.³ The constitutional principle survived; the plaintiffs’ individual case did not.

The Precedents the Court Built On

The panel did not invent the right from nothing. It drew on the Eleventh Circuit’s 1994 ruling in Blackston v. Alabama, 30 F.3d 117, which held that filming public meetings is protected by the First Amendment.⁴ It relied on Williamson v. Mills, 65 F.3d 155 (11th Cir. 1995), in which the court had reversed qualified immunity for an officer who detained a man and seized his film after he photographed undercover officers at a public Fourth of July event, holding that “taking photographs at a public event is a facially innocent act.”⁵

The court also cited the Ninth Circuit’s Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995), which recognized a right to “film matters of public interest” during a public protest.⁶

The Limits the Opinion Left Open

Because Smith announced the right but affirmed judgment against the plaintiffs, it did not define the practical edges of the right. Legal scholars have noted that this shape allowed later courts citing Smith to interpret its scope “to whatever extent they desired,” which contributed to inconsistent application.¹

The reference to “reasonable time, manner and place restrictions” also left unanswered what qualifies as reasonable. Within the Eleventh Circuit, government restrictions on the right to record are subject to strict scrutiny, meaning they must be content-neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communication.⁷

How Smith Has Been Applied in the Eleventh Circuit

The most consequential application came nearly two decades later in Toole v. City of Atlanta. Corey Toole was arrested during a 2014 Atlanta protest that followed the grand jury decision not to indict the officer involved in the shooting of Michael Brown in Ferguson, Missouri. Toole alleged he was standing on the sidewalk filming an officer’s name tag when the officer pulled him into the street and arrested him for disorderly conduct. The charge was later dismissed.⁸

In December 2019, the Eleventh Circuit denied the officer qualified immunity on both First and Fourth Amendment grounds. The panel quoted Smith directly and held that the right to film police and engage in peaceful protest was clearly established in the circuit, and that the officer lacked arguable probable cause for the arrest.⁹ Toole is what Smith looks like when a plaintiff clears the factual bar the Smiths did not.

How Other Circuits Have Built on Smith

At least eight federal appellate circuits now recognize the right to record police. When the Third Circuit joined that group in Fields v. City of Philadelphia in 2017, it placed Smith in what it called a “growing consensus” alongside decisions from the First, Fifth, Seventh, and Ninth Circuits.¹⁰

Glik v. Cunniffe (First Circuit, 2011)

Simon Glik was arrested on Boston Common in October 2007 after using his cell phone to record officers punching a man. Charges of illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace were all dismissed, and he sued under § 1983. The First Circuit unanimously held that Glik had a “clearly established right to film police officers in public” and cited Smith in support. Unlike Smith, Glik denied the officers qualified immunity, finding the First Amendment protections in this area “fundamental and virtually self-evident.”¹¹

Turner v. Driver (Fifth Circuit, 2017)

Phillip Turner was detained in September 2015 while videotaping a Fort Worth, Texas, police station from a public sidewalk. The Fifth Circuit affirmed that “a First Amendment right to record the police does exist” but granted qualified immunity on the First Amendment claim because the right was not clearly established in that circuit at the time. The court did reverse qualified immunity on the Fourth Amendment claim, holding that the police cannot arrest someone solely for refusing to provide identification.¹²

Fields v. City of Philadelphia (Third Circuit, 2017)

The Third Circuit held that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public,” reasoning that if finished recordings are protected, the act of creating them must be too. The court still granted the individual officers qualified immunity because the right was not clearly established in the Third Circuit at the time. Judge Nygaard dissented from that portion.¹³

Irizarry v. Yehia (Tenth Circuit, 2022)

Journalist Abade Irizarry was recording a traffic stop in Lakewood, Colorado, in May 2019 when an officer blocked his view, shined a flashlight into his camera, and drove a police car toward him. The Tenth Circuit joined six other circuits in recognizing the right and denied qualified immunity, holding that the weight of authority from other circuits clearly established the right as of mid-2019 even without on-point Supreme Court or Tenth Circuit precedent. The U.S. Department of Justice filed an amicus brief supporting the right.¹⁴

The Fourth Circuit Holdout

Not every circuit has followed. In the unpublished 2009 decision Szymecki v. Houck, 353 F. App’x 852, the Fourth Circuit concluded that the asserted First Amendment right to record police activities on public property “was not clearly established” in that circuit as of June 2007, and it declined to treat rulings from other circuits as sufficient to establish the right there.¹⁵ Critics have described the resulting patchwork as an “artificial” circuit split, because trial courts in circuits without on-point appellate precedent continue to grant qualified immunity even where most appellate courts have deemed the underlying conduct unconstitutional.¹⁶

Where the Right Stands Now

The U.S. Supreme Court has not issued a definitive ruling on whether the First Amendment protects the right to record police. In March 2026, the Court rejected an appeal from an online citizen journalist involving an arrest in Texas, but the denial did not address the broader constitutional question.¹⁷

What one legal scholar has called a “fragile consensus” has held across eight circuits, but with two persistent soft spots. The appellate courts recognizing the right have largely declined to spell out what counts as a reasonable time, place, and manner restriction, and qualified immunity continues to shield officers in circuits that have not squarely addressed the issue.¹⁸

Several states have moved in the opposite direction with “buffer-zone” laws restricting how close a person may film. Arizona, for example, enacted a law restricting recording of police from a distance of eight feet or closer without permission. Legal commentators have argued that without Supreme Court precedent or federal legislation, the right recognized in Smith v. City of Cumming remains vulnerable to state-level erosion.¹⁸

1
vLex. Smith v. City of Cumming, 212 F.3d 1332
2
FindLaw. Smith v. City of Cumming, 212 F.3d 1332
3
AELE. Smith v. City of Cumming
4
U.S. Court of Appeals for the Eleventh Circuit. Smith v. City of Cumming Opinion
5
FindLaw. Williamson v. Mills, 65 F.3d 155
6
FindLaw. Fordyce v. City of Seattle, 55 F.3d 436
7
Florida Sheriffs Association. Videotaping Police
8
First Amendment Encyclopedia. 11th Circuit Panel Denies Qualified Immunity to Officer Who Arrested Protester Filming Police
9
LLRMI. Toole v. City of Atlanta
10
ACLU of Pennsylvania. Fields v. City of Philadelphia
11
Justia. Glik v. Cunniffe, 655 F.3d 78
12
FindLaw. Turner v. Driver, No. 16-10312
13
EFF. Third Circuit Declares First Amendment Right to Record Police
14
Holland & Hart. Tenth Circuit Recognizes Constitutional Right to Record the Police
15
UNC School of Government. Responding to First Amendment Audits
16
Columbia Law Review. Qualified Immunity Formalism, Clearly Established Law, and the Right to Record Police Activity
17
First Amendment Encyclopedia. Another U.S. Appeals Court Upholds Right to Record Police
18
Columbia Human Rights Law Review. Codifying the Right to Record Police