Remember PINAC (photography is not a crime), when photos and video were taken of public police interactions? Remember how reprehensible “upskirt” photos could not be outlawed because they were taken in public, and there was a First Amendment right to take photos of anything in the public sphere? Remember how woke protesters, who demanded that they not be videoed because they did not give their consent, were told that no one needed their consent to video what happened in public?

Remember when a group in Michigan took videos of people entering and leaving polling places, and the ACLU sought an injunction to stop them from doing so?

On November 5, 2024, Plaintiff American Civil Liberties Union of Michigan filed a Complaint on behalf of itself and its members against Defendants, John Does 1-6, alleging that the John Doe Defendants have engaged in intimidating behavior including travelling to multiple polling locations and illegally recording voters inside polling locations, following a voter to her car as she exited a polling place, and threatening that violence may befall the child of a different voter should Kamala Harris win the election

The conduct spanned a broader range than merely taking videos of people entering and leaving the polling place. In some instances, they blocked exits. In one, video was taken of a person inside the polling place while voting. Some of those taking videos wore masks to conceal their identities. One wore a baseball cap that read, “DON’T ANNOY ME, I’M AN ASSHOLE. MY RIGHTS DON’T STOP WHERE YOUR FEELINGS START.” But the core complaint was about taking videos of people entering and leaving, which made those people feel afraid, harassed and intimidated.

Plaintiff requests that the Court declare that the harassment and intimidation of voters at or
outside the polls during the November 2024 Election is contrary to law and temporarily restrain and enjoin Defendants and their affiliates and collaborators from pursuing such conduct and organizing efforts to engage in voter intimidation.

It’s entirely understandable that voters felt threatened by the conduct. And that they were performing their right, their civic duty, to vote while the Does sought to intimidate them can’t help but strike one as feeling very wrong. But was the right to take video in public so legally distinct as to explain why the ACLU of MIchigan, which would almost certainly be on the other side of the issue had the shoe been on the other foot, sought to enjoin public videotaking?

The arguments relating to blocking doors, taking videos within the polling place and, more particularly, taking video of a person as they voted (remember when voting happened behind a curtain, which closed with the pull of a lever and opened with another when voting was completed?) involve other issues that may well alter the equation and provide a founded basis to distinguish from other public video or photography.

Without explanation, and quite likely without either service or argument in opposition, Judge Terrence Berg granted the TRO.

Having considered Plaintiff’s motion for a temporary restraining order and emergency declaratory and injunctive relief, the Court has determined the following:

1. Plaintiffs have a likelihood of success on the merits.
2. Plaintiffs and other eligible voters will suffer irreparable harm in
the absence of a temporary restraining order.
3. The balance of equities leans in the Plaintiffs’ favor.
4. The public interest favors the issuance of a temporary restraining
order.
5. Plaintiffs have no adequate remedy at law.

The court set a date for a hearing on the Friday following election day, when none of it mattered any longer, a cool judicial magic trick to accomplish the desired outcome while ignoring the complexities of the law and evading scrutiny. And indeed, the ACLU dropped the case immediately after election day, because why expend resources on litigation that no longer mattered? The win was on Tuesday. But Wednesday, who cared? Well, maybe some of us cared, including Eugene Volokh.

Note that lower courts have generally concluded that the First Amendment includes a right to videorecord in public places, at least when the recording is of public officials (such as police officers). The logic of those cases suggests that this right to gather information would include the right to videorecord even private citizens in public places; but that question remains unsettled, as does the question of whether such recording can be limited in particular contexts, or places.

Finally, note that the Court has upheld laws that limit electioneering within 100 feet of polling places, and Michigan does have such a law; but the injunction here seems to limit “filming voters coming and going from the polls” even when the filming is done from outside the 100-foot bubble zone.

Is the question unsettled? Much as it feels wrong to do something that most people would find intimidating, and almost certainly impairs a valuable right, what about the well-established right to take photos and videos of anything that happens in public? That right doesn’t evaporate when the target of the videos doesn’t want his or her picture taken. They don’t get to deny consent under any other circumstances. Why would this be different when walking in or out of a polling place?

One of the perpetual problems with rights is that we can’t love them only when they serve what we deem to be good purposes, like taking videos of cops behaving badly or people behaving poorly. If the rule is what happens in public is fair game, then it’s fair game when it’s students protesting or voters walking out of the polling place. And if it was that unsettled, pervs taking “upskirt” photos would be instructed to find a place on the Group W bench.