Is There a First Amendment Right to Take a Video in a Public Restroom?

In time, this question might be raised by the arrest of a University of Illinois professor yesterday for allegedly recording a video of a portrayer of Chief Illiniwek urinating in the bathroom. The professor has made documentaries critical of Native American imagery at UIUC, and presumably was filming last night for political, not prurient, reasons.

To date, there is a paucity of bathroom filming rights cases. 

No surprise there; however, there are a growing number of cases involving privacy rights in a public bathroom. The cases generally revolve around transgender issues and involve people from all sides of that issue—those people transitioning to a different gender, and those opposing their presence in their bathroom.

The point is that these cases may flesh out the degree to which core constitutional rights pertain to the privacy of a public bathroom.

Back to the UIUC matter, the closest case I can find—and it differs markedly— is Requa v. Kentland School District.

Greg Requa was a high school student. He posted secret videos made of a high school teacher in a classroom (he disingenuously denied making the video).

The court summarized the videos in these terms:

“The completed product includes commentary on the teacher's hygiene and organization habits, and also features footage of a student standing behind the teacher making faces, putting two fingers up at the back of her head and making pelvic thrusts in her general direction. Additionally, in a section preceded by a graphic announcing “Caution Booty Ahead,” there are several shots of Ms. M's buttocks as she walks away from the videographer and as she bends over; the music accompanying this segment is a song titled ‘Ms. New Booty.’”

The school district—after investigating and tracing the video to his MySpace site-- suspended Requa for 40 days. He challenged the suspension on First Amendment grounds.

The court refused his request for an injunction, meaning he likely served out his 40 day suspension.

Granted, the facts in Requa and in the bathroom filming case are very different; but the analysis would be similar. 

The court would ask if the speech is political in nature. 

The professor would answer “yes.” 

Next the court would weigh this against the state’s interest in prohibiting recordings in public bathrooms. In sum, the state would likely argue that privacy is essential to the normal functioning of a bathroom (this gets back to the transgender cases in some ways).

As is typical in these First Amendment cases, the Requa court weighed the political value of filming a teacher’s butt. The court said—politely—it has no First Amendment value. The professor here would do better than that extremely low comparator; but likely not much better. Whatever his, your, or my view on the Chief, filming someone in the bathroom while urinating does nothing to advance one’s argument.