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Filming the Police Has Survived Every Appeals Court That Has Ruled On It

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On smart glasses, the microphone is the part that bites

Simon Glik was walking across Boston Common in October 2007 when he saw three officers punching a man during an arrest, took out his phone, and started filming from a few feet away. That part was fine. What got him handcuffed was the next question the officer asked him: does that thing record audio? Glik said yes. The officer arrested him: not for the video, but under Massachusetts's wiretap statute, the law written for hidden microphones, plus disturbing the peace and aiding a prisoner's escape. All of it was thrown out as baseless, and four years later the First Circuit ruled that Glik had been exercising a clearly established First Amendment right the whole time.

Hold onto the shape of that arrest, because it is the whole of what changes when the camera is strapped to your face. The picture was never the crime. The sound was. And a pair of smart glasses is the first consumer device that records both at once, all the time, without anyone in front of it being sure it is on.

So the honest answer to "can you record the police with smart glasses" is two answers wearing one sentence. The video is close to settled. The audio is where the old law still has teeth, and the glasses are built in exactly the way that law punishes.

The camera question stopped being open years ago

If you are standing on a public sidewalk pointing a lens at a police officer doing their job, the First Amendment is on your side, and this is not a close call anymore. Every federal appeals court that has squarely decided the question has come down the same way, often in nearly the same words.

The Eleventh Circuit said it first, in 2000, recognising "a right to record matters of public interest." Glik made it the law of the First Circuit in 2011: "The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles." The Seventh Circuit followed in 2012, the Fifth and the Third in 2017, the Ninth in 2018. When the Third Circuit ruled in Fields v. City of Philadelphia, it paused to count the house: "Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public."

The last holdout among the circuits to reach it closed the gap in 2022. Abade Irizarry, a YouTube journalist, was filming a DUI stop in Lakewood, Colorado, in May 2019 when an officer parked in front of his shot, shone a flashlight into his lens, and then drove a police cruiser at him. The Tenth Circuit, which had never recognised the right before — used his case to do it: "We recognize that the right exists and was clearly established when the incident occurred." Seven circuits now, covering most of the country. No appeals court has gone the other way.

That is a flat claim, and we will stand on it: the recording, as an act of gathering information about what the government does in public, is protected speech. The device you use to do it does not change that. A phone, a camcorder, a dashcam, a pair of glasses: the courts have never cared about the instrument, only about where you stand and whether the officer is on public duty.

Protected is not the same as untouchable

The limits are real, and they are the part a hopeful reading skips. The Fifth Circuit, in the same breath as recognising the right, said it is "not without limitations" and "may be subject to reasonable time, place, and manner restrictions": you cannot wedge yourself between an officer and an arrest and call it journalism. Every court that has protected the recording has also protected the police officer's authority to run the scene: keep back, do not interfere, follow a lawful order to move.

And a right that exists on paper does not stop an arrest from happening in the street. Glik was handcuffed, booked, and charged before any of this was settled in his favour; his vindication came in a courtroom, years later, not on the Common that night. Irizarry's officer drove a car at him. The right decides how the story ends in litigation. It does nothing to guarantee how the encounter goes while the camera, or the glasses: is still rolling.

The Tenth Circuit made that gap unusually stark a year before it recognised the right. In Frasier v. Evans, decided in 2021, officers who had actually been trained that filming police is protected still walked away with qualified immunity, because in that circuit at that time no court had yet said so. The court's reasoning was that "general First Amendment principles" do not clearly establish the right, and that what an officer was taught in training is beside the point: only a prior judicial decision counts. The Supreme Court declined to take the case. So even a recognised right can arrive too late to be worth anything to the person who was filming, if the arrest happened before the local circuit had spoken. That is the machinery under the reassuring headline, and it is worth knowing before anyone treats "there's a right to film the police" as a shield.

The microphone is where glasses stop behaving like a camera

Everything above is about a lens, and glasses have one. What they add is a microphone that never points anywhere, because it does not have to. It records the officer, and it records the person standing next to you, and it records your own muttered aside to a friend, continuously, from the moment you tap the arm.

The surprise is that recording the officer's own words in public is, so far, largely protected too. When Illinois made it a felony to audio-record a conversation without every party's consent and tried to use it against people openly recording police, the Seventh Circuit blocked the law, noting it was "the broadest of its kind — no other wiretapping or eavesdropping statute prohibits the open recording of police officers lacking any expectation of privacy." Massachusetts's wiretap statute — the very one Glik was booked under — went further and reached secret recordings too, and in 2020 the First Circuit struck it down as applied to the "secret, nonconsensual audio recording of police officers discharging their duties in public." An on-duty officer in a public place has no privacy in what they say while doing the job, and the audio of them saying it has been protected right alongside the video.

The catch is that a microphone on your temple does not know when it has left that protected zone. It is not aimed at the officer. It is aimed at everything. The bystander three feet away, having a private argument on the phone, is not a public official doing public duty — and in the handful of states that treat non-consensual audio recording of a private conversation as a crime, that person's sentences are exactly what wiretap law was written to protect. Recording someone with smart glasses can be charged as a felony in five states — California, Florida, Illinois, Maryland and Massachusetts — and none of those statutes has a carve-out that switches off because you happened to be pointing your face at a cop. The officer's words are safe. The private conversation the same clip swept up may not be.

Glasses sharpen this in a second way that has nothing to do with which words are protected. A raised phone answers, by being visible, the question these encounters turn on: everyone can see it is recording. Glasses are built so that the question stays open. As we found reading the consumer guides, every reliable way to tell whether smart glasses are recording comes with a footnote — the indicator light can be small, ignored, or defeated, and the frames look like frames. That invisibility is a feature to the wearer and a problem to everyone else, and it is precisely the condition that the two-party audio statutes exist to punish. The law's whole premise is that people can protect their words if they know a recording is running. A device designed so they cannot know is a device designed against the grain of that law.

Where that leaves the question

The video half of "can you record the police with smart glasses" rests on ground the courts have paved and repaved for two decades, and the glasses do not disturb it: filming an officer on public duty from a lawful vantage point is protected, whatever you film it with. The audio half rests on ground that shifts with every few feet you move and every extra person the microphone happens to catch. The officer's words travel with the video into protected territory; the private conversation at the next table does not, and the glasses cannot tell the two apart.

None of this tells any particular person what to do at a particular traffic stop, and it is not meant to: the states differ, the facts differ, and the one certainty is that the arrest can come first and the vindication later. What it does say is that the reassuring version of the answer, the one that stops at "there's a First Amendment right to film the police," is describing the camera and forgetting the microphone. On a phone you can hold up the recording for everyone to see. On glasses, the settled half is the half you are looking through, and the unsettled half is the half you cannot hear yourself making.

Sources and verification

This piece is built from the federal appeals-court opinions themselves, read in full via the Caselaw Access Project (which publishes the certified opinion text) or the deciding court's own published PDF. It reports what those courts held; it does not advise any reader on the lawfulness of their own recording, which turns on facts and on the state they are in.