Are violent selfies protected by the Constitution?

by Paul Rubell, Esq.

We all cringe from the recent spate of hateful videos made by criminals while committing heinous felonies. As if their ugly crimes aren’t enough, we have to watch the gruesome spectacle unfold before our eyes on Facebook, Twitter and the nightly news.  The crime victims suffer embarrassment and worse.

Here in New York, a state senator has introduced legislation that would make it a crime to film a video of a violent crime in action. The intent of the proposed law is a good one.  Facebook, Twitter and LinkedIn need to stop felons from using social media to promote their violent crimes online. We do not want to give these hoodlums 15 seconds of fame.

Question:  Are crime-scene selfie videos protected under the Constitution?  News12 asked me to remark. You can watch here:


Senator Philip Boyle’s proposed law probably violates people’s First Amendment rights to speak freely and publish freely. These fundamental freedoms are at the foundation of American law.  Our Constitution guarantees you the right to express yourself.  In fact, the Constitution states that you own the copyright to your own creations including songs, paintings, poems, photos, multimedia, computer code and apps.

Taking videos is a form of expression that is guaranteed by the Bill of Rights.  However, even free speech has constitutional limits. For instance, if you  shout “fire” in a crowded theater, you can be arrested and the 1st Amendment will not protect you. In 1942, the US Supreme Court ruled in Chaplinsky vs. New Hampshire that “fighting words” are not protected speech.

Are crime scene videos the kind of “fighting words” that are unprotected by the Constitution?  I think Senator Boyle’s proposed anti-video law could rupture the 1st Amendment. What do you think?


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