Federal Judge Says Recording Police Not Protected By The First Amendment
from the please-inform-all-parties-before-recording-of-your-expressive-intentions dept
Over the years, the nation's courts have moved towards recognizing First Amendment protections for citizens who film public servants carrying out public duties. Nearly every case has involved a citizen arrested for filming police officers, suggesting far too many law enforcement entities still feel their public actions deserve some sort of secrecy -- even as these agencies deploy broader and more powerful surveillance tools aimed at the same public areas where no expectation of privacy (under the Fourth Amendment) exists.
A rather disturbing conclusion has been reached by a federal court in Pennsylvania. Two cases involving people who had their photography efforts interrupted by police officers have resulted in the court finding there is no First Amendment right to film public servants. (h/t Adam Steinbaugh)
U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued his ruling in two consolidated cases filed against the city of Philadelphia by citizens whose cellphones were confiscated after they either photographed police activity or were barred from filming police activity.The court has not yet discussed whether the actions of police in response to the filming violated the plaintiffs' Fourth Amendment rights, leaving that for a jury to determine. But what it does say about the First Amendment isn't encouraging.
Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.
"The citizens urge us to find, for the first time in this circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment," Kearney said.
"While we instinctively understand the citizens' argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on 'observing and recording' without expressive conduct and, consistent with the teachings of the Supreme Court and our court of appeals, decline to do so today."
According to this decision, the photography must be "expressive" to receive First Amendment protection.
Fields' and Geraci's alleged "constitutionally protected conduct" consists of observing and photographing, or making a record of, police activity in a public forum. Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.If taken on face value, this means informing cops that your recording is just a small part of a multimedia campaign highlighting the aggressive tactics of law enforcement or will be Twittered with #BTFSTTG or #BLM or whatever appended. The court apparently feels there's no expressive value to simply recording public servants performing public duties -- which would mean other efforts that routinely go unchallenged by the recorded, like city council meetings, etc., may now be shut down without worrying about First Amendment lawsuits.
Unfortunately, the Third Circuit Court of Appeals hasn't exactly been helpful in protecting citizens against public servants who wish to operate in public without third party documentation. While other circuits have found that the First Amendment "protects the right to gather information about what public officials do on public property," the Third Circuit has yet to challenge qualified immunity assertions claims made in cases involving citizens recording police officers.
One decision carefully weighing the state of the law and noting the competing public and private interests comes from the Third Circuit Court of Appeals in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010). Kelly was a passenger in a truck stopped for a bumper height violation. When the officer saw Kelly videotaping the contact, he arrested Kelly for a wiretap law violation.This decision will be appealed, but the path to protecting citizen photographers from public officials' attempts to shut them down doesn't appear to run through this Circuit. There's a circuit split on the issue and it would take the Supreme Court to resolve it. As it stands right now, there are Fourth Amendment implications yet to be addressed which, if resolved in favor of the plaintiffs, would at least deter future bogus arrests. But without a finding that affords First Amendment protection to the unadorned act of filming public officials, police officers who abuse their power to shut down recordings will likely be willing to roll the dice on civil lawsuits.
Those charges were later dropped.
Kelly sued.
The court granted qualified immunity to the officer with this instructive explanation:
We conclude there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment. Although Smith and Robinson announce a broad right to videotape police, other cases suggest a narrower right. [Other court decisions] imply that videotaping without an expressive purpose may not be protected, and in the Whiteland Woods case we denied a right to videotape a public meeting. Thus, the cases addressing the right of access to information and the right of free expression do not provide a clear rule regarding First Amendment rights to obtain information by videotaping under the circumstances presented here.
And, as is noted by the earlier Third Circuit Appeals Court decision, no First Amendment protection covers the recording of other public officials in public areas. This lack of protection creates a chilling effect, forcing anyone who can't articulate an expressive intent at the point in time where their act of recording is challenged to seek recourse through an unsympathetic court system. This is a depressing decision in light of the fact that other entities are seeking to have everything from automatic license plate readers to copyright trolling treated as protected expression.
Reporting on public activities of public officials has long been covered under the First Amendment. Gathering documentation is a large part of reporting, even if lots of collected footage is never used. The courts have given news gathering protection, even if there's no clear expressive purpose at the point the footage is collected -- or even after the fact, if the footage is discarded. The Third Circuit refuses to extend this blanket protection to citizens, even as the line between "citizen" and "journalist" has almost been completely erased.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, free speech, mark kearney, pennsylvania, recording police
Reader Comments
Subscribe: RSS
View by: Time | Thread
Well if a reason is required...
[ link to this | view in chronology ]
Re: Well if a reason is required...
I am not at liberty to discuss the project with you."
[ link to this | view in chronology ]
Fix the disease before you try to ban the symptom.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Accountability
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
BUT:
If an officer asks a citizen to stop using a recording device and the citizen does not do so, the officer now has a case to arrest the citizen for "refusing to obey a lawful order of a peace officer". That can be charged as criminal. The courts would need to rule the original order unlawful to dismiss such charge, and as stated in the article currently there are court splits on that issue.
[ link to this | view in chronology ]
Re: Re:
So which is it they asked or they ordered? AFAIK they have no right to order you to stop unless it is against the law ...
[ link to this | view in chronology ]
Re: Re:
The sticking point there is 'lawful order'. Refusing to obey an order that is within the scope of a law when it's given by a cop might be considered a crime, but just because a cop says it doesn't mean it qualifies. As such unless there's an actual law prohibiting recording police actions 'stop recording' is not a lawful order, it's a personal request, and the one doing the recording is under no obligation to follow it.
If the courts actually gave a damn about the rights of the citizens such cases would be over in a matter of minutes, and there would be no 'qualified immunity' offered to cops who tried to shut down people recording their actions.
[ link to this | view in chronology ]
Re: Re:
If the police officer orders someone to suck his dick, does the citizen have to obey?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Many rulings on this already were not taken into account?
Certainly this will get rejected upon appeal.
[ link to this | view in chronology ]
The first amendment is very broad and has centuries of precedent. This judge is simply incompetent.
[ link to this | view in chronology ]
Re: FTFY
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The lesson of the "South Park Rule"
[ link to this | view in chronology ]
Re: The lesson of the "South Park Rule"
[ link to this | view in chronology ]
Re: Re: The lesson of the "South Park Rule"
[ link to this | view in chronology ]
Re: Re: The lesson of the "South Park Rule"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Are you trying to help the process along?
[ link to this | view in chronology ]
This seems completely backwards to me. All actions are legal unless there are laws prohibiting them. The constitution doesn't give rights to citizens, it places restrictions on government.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re:
Imagine that!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Beat them at their own game
[ link to this | view in chronology ]
If they aren't doing anything wrong.......
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Then you might run into wiretap laws.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
The citizens urge us to find, for the first time in this circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment," Kearney said.
Is it only critical expression that is protected? What if someone wanted to express by photographing, "Good job" to the police. Or in this case,"that's a nice picture", Or just express themselves without any particular meaningful statement ( sort or a Mahna Mahna). Shouldn't that be protected, too?
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Furthermore limiting access to videos of how cops should behave may reduce the extent that cops see these videos. Since these videos may be instructive the government should be blamed for potentially denying police officers access to videos on how they could have better handled the situation.
[ link to this | view in chronology ]
First, placing subjective qualifications in order to engage in protected activities is prior restraint.
Second, announcing a 1st Amendment protected activity can go against the 5th Amendment particularly if the 1st Amendment activity is now considered illegal.
Lastly, if someone has to go up to the cop to say, "Psst, I'm recording", that person risks arrest for interfering or death for making the cop fear for his life.
The judge seems to conveniently forget there's other parts to the 1st Amendment, like "freedom of the press" and "petition the government for a redress of grievances."
[ link to this | view in chronology ]
oath logic
jurors must nullify, but shy of that, (just between you an me) it's time to arrest these fucking traitors to the United States!
There's a nice photoshop art by Dees of a long booking line, that would be the PLEASANT way forward. But I think that psychopaths who run the banks have murder in mind instead. Which means all of us who have no experience need to get really toughened up. And fast.
Not sure trump ain't the answer either.
A: I ain't republican
B: I pretty much have a plethora of unresolved and unaddressed and unrecognized grievance. But my fellow man must be the judge of if I am "just" in my claim.
That's YOU.
I hate the republican party. I am registered democrat, but I hate the democrat party too. See? All my D candidates are backstabbing dual citizen treasonous traitors. (Pick the proper titles for proper pieces of shit in California)
The R's are shit too.
I'm done. These fucks have to go to jail before they FRY THE FUCKING PLANET--and they don't seem willing.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
All that weaponry they have at their disposal, and the CAMERA is their biggest fear.
Perhaps instead of weapons they should be issued masks, just like crooks.
[ link to this | view in chronology ]
Seriously
[ link to this | view in chronology ]
Re: Seriously
Right now recording cops is not in itself illegal, defending your right to record cops in a safe way, given your keeping your distance unless approached, OR your the subject of the recording (getting pulled over for example).
This case is all about giving cops a way to say "Stop recording me!" and turning that alone into a lawful order.
[ link to this | view in chronology ]
Re: Seriously
[ link to this | view in chronology ]
Fair notice
The act of neutrally monitoring law enforcement is, itself, a political statement—we don’t trust you not to misbehave. Even if that were not expressive, at the moment a cop tells you to stop performing a perfectly legal activity, any non-expressive action on your part is instantly converted to an action of recording your opposition to that conduct.
[ link to this | view in chronology ]
No sir I was just filming our publicly purchased items to make sure they were in good working order, so the public can make a determination of whether or not Law Enforcement is spending public tax dollars wisely.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
If they were, The US Constitution, rather the first amendment, it's PURPOSE is to speak out against the govt without reprisal from the govt.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
Perhaps you should evaluate the rulings of all judges and correlate their rulings with who appointed them rather than posting about one data point.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
judge
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
really.
[ link to this | view in chronology ]