Delaware Laws on Recording in Public: First Amendment Rights, Public Spaces, and Restrictions (2026)

In Delaware, recording video and taking photographs in public spaces is generally lawful, because the state's privacy statutes protect private places and private conversations, not what anyone can see from a public place. Audio recording of a private conversation is riskier. Delaware's privacy statute, 11 Del. C. Section 1335, requires the consent of all parties, even in a public location, while its wiretap act, 11 Del. C. Section 2402(c)(4), lets a participant record. No controlling Delaware court decision has resolved that conflict.

Recording in public spaces is one of the most common situations where Delaware residents encounter recording law questions. The good news is that recording what is visible in public is broadly lawful, and the First Amendment protects recording police on duty in public. However, Delaware's unique dual-statute framework creates some nuances that do not exist in other states, particularly when audio recording is involved. This guide explains when and where you can record in public in Delaware, the restrictions that apply, and the penalties for crossing legal boundaries.

The First Amendment and Public Recording

Constitutional Protections

Recording what happens in public is generally lawful in Delaware because the state's privacy statutes protect private places and private conversations, not what anyone can see from a public place. The First Amendment holding that binds Delaware is narrower. The Third Circuit, which covers Delaware, held in Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), that the First Amendment protects photographing, filming, or otherwise recording police officers conducting their official duties in public, subject to reasonable time, place, and manner restrictions. The court added that it was not saying all recording is protected.

The core principle is straightforward: if you can see it from a public space, you can generally record it. This applies to events, activities, buildings, people, and anything else visible from a location where you have a legal right to be.

What Counts as a "Public Space"?

Public spaces in Delaware where recording is generally permitted include:

• Streets, sidewalks, and crosswalks: Any public road or pedestrian pathway
• Parks and recreational areas: Municipal, county, and state parks
• Government buildings: Courthouses, city halls, legislative buildings (subject to specific facility rules)
• Public transportation: Bus stops, train stations, and transit vehicles
• Government parking lots: Areas accessible to the public
• Public beaches: Delaware's coastline and public beach access areas
• Town squares and plazas: Public gathering spaces

Where Public Recording Gets Complicated

Some spaces are open to the public but are not truly "public" in a legal sense:

• Private businesses open to the public: Stores, restaurants, and shopping malls are private property. The owner can restrict recording even though the public is invited to enter.
• Private parking lots: Shopping center and business parking lots may have recording restrictions imposed by the property owner.
• Hospitals and healthcare facilities: While some areas may be accessible to the public, recording in patient care areas raises HIPAA and privacy concerns.
• Private schools and campuses: Even though visitors may be permitted, the property owner controls recording rights.

Audio Recording in Public Spaces

When the All-Party Consent Rule Applies in Public

Delaware's all-party consent requirement under 11 Del. C. Section 1335(a)(4) applies to private communications, including those that happen in public locations. Delaware's wiretap act points the other way: 11 Del. C. Section 2402(c)(4) makes it lawful for a party to a conversation, or someone with one party's consent, to record it, unless the recording is made to commit a crime or tort. No controlling Delaware court decision has resolved the conflict, so the cautious course is to get everyone's consent. The key question is not where the conversation happens but whether the participants have a reasonable expectation of privacy in that conversation.

Examples where audio recording in public likely requires consent:

• Two people speaking quietly at a park bench, clearly intending a private discussion
• A phone call someone is having on a sidewalk (the person on the phone has an expectation of privacy in the call)
• A whispered conversation in a restaurant booth

Examples where audio recording in public likely does not require consent:

• A street performer singing to a crowd
• A politician giving a speech at a public rally
• A group having a loud conversation in a public space where they cannot reasonably expect privacy
• Ambient crowd noise at a sporting event

Practical Guidance for Audio Recording in Public

If you are recording video in a public space in Delaware and want to include audio:

• General ambient sound is typically fine because no one has a privacy expectation in background noise
• Targeted recording of specific private conversations can trigger the consent requirement
• Interviews and statements made to you: if the person can see you are recording, or agrees to it, consent is clear. If you record a conversation you take part in without telling the other person, Delaware's two statutes conflict, so ask first
• When in doubt, inform people that you are recording audio. This is especially important for content creators, journalists, and anyone who regularly records in public

Recording Government Meetings and Public Proceedings

Delaware Freedom of Information Act

Delaware's Freedom of Information Act (29 Del. C. Chapter 100) is the main source of public access to government meetings in the state. Under 29 Del. C. Section 10004, every meeting of a public body must be open to the public except for those closed under specific exemptions.

Key provisions regarding recording public meetings:

• All public meetings of government bodies must be open to the public, apart from closed sessions the statute allows. The statute does not expressly address attendees recording, so check the body's meeting rules, which may set reasonable conditions such as where cameras can be placed
• Minutes must be kept for all public meetings, including a record of members present and each vote taken, and made available to the public as a public record
• Closed sessions are limited to specific topics defined by statute (personnel matters, pending litigation, trade secrets, etc.)

Types of Government Meetings You Can Record

These types of public proceedings are generally open to the public in Delaware. Recording an open session is not a private conversation under the consent statutes, but each body's meeting rules may set conditions:

• City and town council meetings
• County council meetings
• School board meetings
• State legislative committee hearings and floor sessions
• Planning and zoning board hearings
• Board of Adjustment meetings
• Public utility commission hearings
• State agency public hearings

Courtroom Recording

Recording in Delaware courtrooms is subject to rules set by individual courts and judges. The general framework includes:

• Permission required: You typically need advance permission from the presiding judge before recording
• Media access: Credentialed media may be granted recording privileges under specific conditions
• Appellate courts: The Delaware Supreme Court and Court of Chancery have specific rules governing recording and broadcasting of proceedings
• **Unauthorized recording**: Recording in court without permission can result in contempt charges

Recording at Protests and Public Demonstrations

Your Rights at Public Protests

The First Amendment protects the right to protest, and under Fields it protects recording police performing their duties in public, including at a protest. Recording other protest activity from a public place is generally lawful. In Delaware, you can:

• Record from public sidewalks, streets, and other public spaces adjacent to the protest
• Film police interactions with protesters
• Livestream protest activities in real time
• Photograph signs, banners, and public expressions of the protesters

Limitations During Protests

While your recording rights at protests are broad, certain limitations apply:

• Do not block public rights of way: Standing in the middle of a street or blocking a sidewalk to get a better recording angle can result in charges
• Comply with lawful police dispersal orders: If police lawfully order a crowd to disperse, you must comply even while recording
• Do not enter restricted areas: If police establish a perimeter, do not cross it to record
• Respect private property: Do not trespass on private property to record protests
• Do not incite violence: Recording is generally lawful; participating in or encouraging illegal activity is not

Protecting Your Recordings at Protests

Protest recordings can become important evidence. To protect your footage:

• Use a phone lock and encryption
• Enable automatic cloud upload so footage is preserved even if your device is confiscated
• Disable biometric unlock (use a PIN instead) for stronger legal protection against compelled access
• Do not delete footage if police request it
• Know your rights if your device is seized (police generally need a warrant to search it under Riley v. California)

Recording on Private Property Open to the Public

Business Premises

Although stores, restaurants, and other businesses are open to the public, they are private property. This gives business owners the right to:

• Prohibit all photography and recording on their premises
• Allow recording with certain conditions (no flash, no recording of other customers, etc.)
• Ask you to leave if you refuse to stop recording
• Call police to enforce a trespass complaint if you refuse to leave

If you are asked to stop recording or leave a business, you must comply. Continuing to record after being told to stop could result in trespassing charges. However, a business cannot confiscate your recording device or force you to delete footage already captured.

Shopping Malls and Commercial Centers

Large commercial properties like shopping malls present a hybrid public-private situation. While malls are open to the public:

• Mall management can set recording policies
• Individual store policies may differ from the mall's general policy
• Common areas (hallways, food courts) may have different rules than individual stores
• Recording in public areas of the mall is more likely to be permitted than recording inside individual stores

Street Photography and Content Creation

Rights of Photographers and Videographers

Delaware has no general permit requirement or ban on street photography, but one statute applies anywhere, including on a public street: 11 Del. C. Section 1335(a)(7) makes it a class G felony to secretly photograph or record under or through a person's clothing to view their body or undergarments. Within that limit, photographers and videographers working in public spaces may generally:

• Photograph or film any person, building, or event visible from a public location
• Use images captured in public for news, editorial, artistic, or educational purposes
• Sell photographs or video footage taken in public spaces (subject to commercial use limitations involving identifiable individuals)

When Subjects Object

If someone you are photographing or recording in public objects:

• You are not required to stop recording in a public space
• You should use good judgment and consider the circumstances
• You cannot follow or harass the person (this could constitute stalking)
• Commercial use of someone's likeness (advertising, product endorsements) may require a model release, but this is a civil matter, not a criminal recording law issue

Drone Recording in Public

FAA and Delaware Rules

Drone operators recording in public spaces must comply with:

• FAA regulations: Registration requirements, altitude limits (400 feet for recreational drones), and airspace restrictions
• Delaware's drone statute: 11 Del. C. Section 1334 bars flying a drone over an event with more than 1,500 people, over critical infrastructure, over an active emergency response, or so as to commit certain privacy violations under Section 1335 against a person on private property, such as picking up private conversations, unless an exemption applies (for example, the property owner's written permission or FAA authorization for a commercial operator)
• No local drone rules: Section 1334(e) reserves drone regulation to the State, so counties and municipalities cannot add their own drone restrictions

Where Drone Recording Is Permitted

Drones can generally record:

• Public parks and open spaces (check specific park rules)
• Public events and gatherings, but not over an event with more than 1,500 people in attendance unless an exemption applies
• Public infrastructure and landscapes
• Your own property

Where Drone Recording Is Restricted

Drone recording is restricted or prohibited:

• Over critical infrastructure (power plants, government facilities)
• Near airports and controlled airspace without authorization
• Over any incident where first responders are actively responding
• Over private property in ways that intrude on privacy
• In ways that capture audio of private conversations

Penalties for Illegal Public Recording

While most public recording is legal, crossing into illegal territory carries penalties:

Explore More Delaware Recording Laws

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Frequently Asked Questions

Can I record video in public in Delaware?

Yes. Recording video in public spaces where there is no reasonable expectation of privacy is generally lawful, and the Third Circuit has held that the First Amendment protects recording police performing their duties in public. You can record on streets, sidewalks, parks, and other public areas. However, private property owners (including businesses) can restrict recording on their premises.

Can I record audio of people talking in a public place in Delaware?

It depends on the nature of the conversation. If the people are having a private conversation (speaking quietly, in a secluded area), Delaware's all-party consent requirement under 11 Del. C. Section 1335 may apply. If they are speaking loudly in a public setting with no expectation of privacy, recording is generally permissible. If you are part of the conversation, the law is unsettled: Section 1335 calls for all-party consent while the wiretap act, 11 Del. C. Section 2402(c)(4), lets a participant record, so get everyone's consent to be safe.

Can I record government meetings in Delaware?

Yes. Delaware's Freedom of Information Act (29 Del. C. Chapter 100) requires that public meetings of government bodies be open to the public. The statute does not expressly address recording by attendees, but recording an open meeting is not a private conversation under Delaware's consent statutes. Check the body's meeting rules, which may set reasonable conditions. Every public body must keep written minutes of the meeting and make them available for public review.

Can a store tell me to stop recording in Delaware?

Yes. Stores and other businesses are private property. The owner or manager can prohibit recording and ask you to leave if you refuse to stop. Continuing to record after being asked to leave could result in trespassing charges. However, the business cannot confiscate your device or force you to delete footage.

Can I fly a drone with a camera in Delaware?

Yes, subject to FAA regulations and Delaware privacy laws. You must comply with FAA registration and operational rules. Delaware's drone statute, 11 Del. C. Section 1334, bars flying over an event with more than 1,500 people, over critical infrastructure such as power plants and government buildings, over an active emergency response, or so as to commit certain privacy violations against someone on private property, unless an exemption applies, such as the property owner's written permission or FAA authorization for a commercial operator. Only the State can regulate drone operation, so there are no separate local drone ordinances.