Third Circuit Appeals Court Establishes First Amendment Right To Record Police

from the another-circuit-embraces-the-inevitable dept

Mon, Jul 10th 2017 11:44am — Tim Cushing

Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).

According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or ~~die~~ be arrested mandate.

At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.

Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.

The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that “[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.” No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

This establishes citizen photography as protected speech, no matter what the photographer's intent is. The protection here has very little to do with expression, no matter how much the defendants wish it was. Instead, it has everything to do with access.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

[...]

In sum, under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas.

In the Third Circuit, cops can no longer expect to shielded from lawsuits related to shutting down citizens' recording efforts.

As was noted by the court, the right likely should have been established at the time the incident took place (2014).

In 2011 the Department published a memorandum advising officers not to interfere with a private citizen’s recording of police activity because it was protected by the First Amendment. In 2012 it published an official directive reiterating that this right existed. Both the memorandum and directive were read to police officers during roll call for three straight days. And in 2014, after the events in our case and the occurrence of other similar incidents, the Department instituted a formal training program to ensure that officers ceased retaliating against bystanders who recorded their activities.

Unfortunately, the court still sides with the officers, stating that precedent from various circuits did not divorce the act of recording entirely from the concept of "expression." At the point the arrests occurred, it may have seemed reasonable to shut down citizens who attempted to record police if they couldn't clearly state an "expressive" reason for doing so. And that's apparently ok even if the officers had received repeated instructions from their supervisors about respecting the public's right to record.

The dissent disagrees with this conclusion. It wasn't just court precedent and the PD's own directives. Officers also should have been aware of the DOJ's directive along the same lines, which was handed down in 2012 to all local law enforcement agencies urging them to respect the public's "right to record."

With all of this, it is indisputable that all officers in the Philadelphia Police Department were put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity. From a practical perspective, the police officers had no ground to claim ambiguity about the boundaries of the citizens’ constitutional right here.

Even absent this wealth of directives, any officer should have "reasonably" known retaliating against citizens for recording in public was the wrong way to handle this.

A reasonable police officer would have understood, first-hand, the significance of this proliferation of personal electronic devices that have integrated image capture into our daily lives, making it a routine aspect of the way in which people record and communicate events. Apart from any court ruling or official directive, the officers’ own lived experience with personal electronic devices (both from the perspective of being the one who is recording and one who is being recorded) makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings.

The upshot is the judicial enshrinement of the right to record police. The downside for the plaintiffs is the officers can't be sued for violating what should have been considered a clearly established right, even before the Appeals Court decision.

The way things are going, the Supreme Court may never have to address the issue. As the presiding judges note (both in the opinion and during oral arguments), the establishment of this right across the nation is inevitable. As more circuits address the issue head-on, the rulings should result in further First Amendment wins.

As a side note, the oral arguments are an amazing watch. The government's lawyer desperately wants the discussion to center on questions of immunity, but the court is far more interested in how he intends to argue speech must be tied to expressive intent to receive First Amendment protections. The fun starts about 19:45 into the recording. By the time a judge brings up the Zapruder recording ten minutes later, you almost feel sorry for the government's legal rep.

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Filed Under: 1st amendment, filming police, first amendment, free expression, recording police, third circuit

29 Comments

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Annonymouse, 10 Jul 2017 @ 12:43pm

Feeling almost sorry?
Not really when there is still a glimmer of hope that a judge has the cojones to actually punish wrongdoing on the spot.
I actually want to see judges lawyers and the rest of the gangsters do hard time.... yeah right.... more likely things will have to get hot and noisy before any real changes will happen.
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bshock, 10 Jul 2017 @ 12:47pm

and this is a win because...?
"The upshot is the judicial enshrinement of the right to record police. The downside for the plaintiffs is the officers can't be sued for violating what should have been considered a clearly established right, even before the Appeals Court decision."

So basically you have a rule that can never be enforced? Sounds like a clear loss to me -- you have the legal right to record police officers, but they have the effective right to retaliate against you for doing so.
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Anonymous Coward, 10 Jul 2017 @ 12:48pm

Even if the bad decision stood, wouldn't it be an expression of speech if I live-streamed it instead of merely recorded it?
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Anonymous Coward, 10 Jul 2017 @ 12:49pm

Re: and this is a win because...?
It is reported as a win on the assumption that, while the police were not punished this time for retaliating, next time they will know better than to retaliate against citizens and, if the police retaliate again, then next time, there will be an actual punishment. Unless, of course, the next court decides that losing this time wasn't quite enough notice and the officers need another stern finger-wagging before you can expect them to know the rules.
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Anonymous Coward, 10 Jul 2017 @ 12:56pm

Re:
Yes. Except, of course, that the police would have no reasonable way of knowing that you were live-streaming, so the protection would mean effectively nothing.
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stderric (profile), 10 Jul 2017 @ 12:59pm

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. ...

I think I'm missing something about the structure of the Circuit Courts, because I find that list a little odd... especially now that the Third has been added to it.
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SAM, 10 Jul 2017 @ 1:42pm

Re: missing something
....well, the courts are missing a lot and being very sloppy handling this legal issue

There's no way an honest reading of the 1st Amendment text permits 1A to apply to this cop-recording issue.

1A clearly is a restriction on government authority to interfere with citizen religion/speech/press/assembly/petition. But 1A says absolutely nothing about recording/documenting public government activities... either directly or indirectly.

1A is the wrong Amendment to cite -- 5th and 9th are applicable.

Of course the government has NO authority to restrict recording/documenting of public government activities -- but most U.S. courts vigorously do so to courtroom observers in open court. Where does the US Supreme Court get Constitutional authority to prohibit TV news cameras or personal cellfone recordings in its courtroom ?
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Anonymous Coward, 10 Jul 2017 @ 1:54pm

Re:
I understand your confusion: it's due to a little known constitutional wrinkle that means all the even-numbered courts are run by TV judges.

Season 44 of Judges Judy and Joe Brown will address these issues.
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Thad, 10 Jul 2017 @ 2:04pm

Re: and this is a win because...?

So basically you have a rule that can never be enforced?

No, you have a rule that can't be enforced in this case but can be in future cases.

The officers successfully argued that they didn't know any better because there wasn't clear legal precedent. That's unfortunate, but this case establishes a clear legal precedent, so in the future other officers won't be able to use that excuse anymore.
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Thad, 10 Jul 2017 @ 2:10pm

Re: Re: missing something

1A clearly is a restriction on government authority to interfere with citizen religion/speech/press/assembly/petition. But 1A says absolutely nothing about recording/documenting public government activities... either directly or indirectly.

Wait, what?

Are you seriously suggesting that "documenting public government activities" is not protected by the First Amendment?

If the government is allowed to restrict citizens from documenting public government activities, then I'm kind of at a loss as to what you believe the purpose of speech and press freedoms are. The public's ability to document government activities is at the very core of the First Amendment.
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SAM, 10 Jul 2017 @ 3:40pm

Re: missing something
...the Constitutional issue is a bit more complex than a casual review would indicate

... 1st Amendment text follows-- please point out exactly where it states a right to record public police activity. if unable to do so, please clearly explain how you you determined the 1st Amendment contains such a right.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. "
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Hugo S Cunningham (profile), 10 Jul 2017 @ 4:04pm

1st Amdt right "to petition the government for redress of grievances"
I found the right of "petition" more persuasive than "freedom of speech". Petitions against police misconduct were routinely ignored before recording was available. Now that recorded evidence is available, however, petitions are given the serious consideration implied by the First Amendment.
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stderric (profile), 10 Jul 2017 @ 4:09pm

Re: Re:
Cool. Netflix is a bit easier to use than PACER.
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Thad, 10 Jul 2017 @ 4:10pm

Re: Re: missing something

please point out exactly where it states a right to record public police activity.

Is your argument, now, that if the First Amendment doesn't refer specifically to a form of speech, then that speech is not protected by the First Amendment?

Because it also doesn't mention video games, crush videos, or funeral protests. And yet the Supreme Court has ruled that the First Amendment protects all those things.

So that's why "show me in the First Amendment where it says you have the right to X" is a bullshit argument.

As for why, specifically, recording the police is covered by the First Amendment? Well, that'd be because there is a very narrow list of things that aren't covered by the First Amendment, and recording the police ain't on it.

Going back to US v Stevens (with a hat tip to Ken White:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

So we've got obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. (There are other historical exceptions, including fighting words, but the "fighting words" doctrine has been so narrowly defined recently that it's essentially vestigial.) Recording the police is none of those.

Speech which does not fall into any of those specific, narrowly-defined categories is protected.

So, your turn. Please point out exactly where there is a legal precedent that establishes that recording the police is unprotected speech.
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Steerpike (profile), 10 Jul 2017 @ 4:12pm

Skipped ahead to 19:45 in the oral arguments. Having argued an appeal in front of a circuit court, I was cringing on behalf of this gov't attorney the whole time. I wonder what he did for the firm to send him to make those arguments :D
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Thad, 10 Jul 2017 @ 4:13pm

Re: 1st Amdt right "to petition the government for redress of grievances"
Fair enough, but the five rights protected by the First Amendment aren't mutually exclusive. What you're describing is people using speech disseminated by the press in order to assemble and petition. And a lot of those people are religious, too.
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orbitalinsertion (profile), 10 Jul 2017 @ 4:20pm

Re: Re: Re: missing something
Also, the Constitution is not proscriptive in these matters. It is detailing a minimum of what the government cannot interfere with. Rights were only enumerated because there was a history of them not being respected. Which is why later amendments had to take the effort to clearly point out that certain people are human beings, contrary to how some oh-so-amazing Enlightenment thinkers would interpret things for their own convenience.
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orbitalinsertion (profile), 10 Jul 2017 @ 4:21pm

Re: Re: Re:
And cheaper, to my understanding.
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Steerpike (profile), 10 Jul 2017 @ 4:21pm

Re: Re: Re: missing something
Yes, we have 228 years of case law on the 1st Amendment, and the state of that case law at any given time, at least insofar as it comes form the Supreme Court, sets the boundaries of the 1st Amendment. If the Bill of Rights were limited to only those things that were specifically stated in the text of the amendments, they'd be pretty poor protection against government overreach. The 4th Amendment, for example, does not include digital or electronic media, however it is quite clear from U.S. case law that the amendment also provides protections for a citizens' interests in those items.
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z! (profile), 10 Jul 2017 @ 4:29pm

Re:
Ouch, the judges were not being subtle. Or tolerant.
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stderric (profile), 10 Jul 2017 @ 4:38pm

Re: Re: missing something
In addition to the others' points, there's also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979):

...creation and dissemination of information are speech within the meaning of the First Amendment.

I think the 'creation' bit would include recording...
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Thad, 10 Jul 2017 @ 4:39pm

Re: Re: Re: Re: missing something
Definitely, but I decided to forego my usual Ninth Amendment spiel since he asked, specifically, about the First Amendment case.
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Thad, 10 Jul 2017 @ 4:45pm

Re: Re: Re: missing something
Thanks, nice cite.
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Anonymous Coward, 10 Jul 2017 @ 6:57pm

Re: missing something
the words "speech" & "recording" are not synonyms

police have generally asserted that the mere act of recording them is a crime in itself, regardless of the content or disposition of the recording. they assert that the act of passively recording them illegally 'disrupts' their lawful duties.

SCOTUS case law says 1st Amendment prohibits government sanctioning people or organizations based on what they 'say, write , or communicate'. When the government targets the speaker’s 'message' (content)— that generally violates the 1st Amendment. Content is the key.

There's a subtle but significant difference between the police position and established 1st Amendment court interpretation. The 1st Amendment is irrelevant to the police position. Police position on recording is totally non-constitutional & indefensible, but for other reasons.

(is it a 1st Amendment right for citizen observers to video-record the proceedings in open American courts ???)
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stderric (profile), 10 Jul 2017 @ 9:04pm

Re: Re: missing something
The courts seem to still be arguing about the concept of there being a 'right to record,' and the idea of recording being an 'expressive act' has been popping up. Also, *where* you record (e.g. a courtroom vs. a food court) determining whether or not the 1st Amendment comes into play seems to be a weirdness they're also trying to hash out.

All I'm saying is that some judges seem to think recording is expressive speech, and if *they* think it's central to the issue of recording cops in public, well... they're the ones with the gavels.
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Hugo S Cunningham (profile), 11 Jul 2017 @ 4:34am

Re: Re:
They looked like a pair of cats contemplating a mouse, particularly the judge on the left.
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Jon, 11 Jul 2017 @ 5:06am

Re: missing something
Wait, why is this an argument? The founding fathers were visionaries, but they couldn't see the future.

The first amendment was ratified in 1787. RECORDING of any sort wasn't invented until the mid-1800's!(let alone portable enough to use "in public") How could they have specifically included something that didn't exist?

To say that the constitution should be taken literally and never adapt is both ludicrous and contrary to the intent. The supreme court was specifically tasked with interpreting those issues for exactly this reason.
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Anonymous Hero, 11 Jul 2017 @ 6:16am

"In sum, under the First Amendment’s right of access to information the public has the commensurate right to record—photograph, film, or audio record—police officers conducting official police activity in public areas."

This is too bad, because it's most important to record police officers when they are conducting un-official activity, like shooting a black man in the back then planting a gun near him.
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Thad, 11 Jul 2017 @ 1:09pm

Re: Re: missing something
You have a point, though it bears noting that at the time the Constitution was written, "record" used to simply mean creating a record. You could record the police in 1787; it's just that back then you had to do it with a pen and paper.

As I said, though, whether or not the words "record" or "police" appear in the First Amendment is irrelevant. The plain purpose of the freedoms of press and speech is to allow criticism of the government. (That's not the only purpose, obviously, but it's absolutely bedrock.) To suggest that there is no right to record public actions of the government is, as I said, to raise the question of what the point of the First Amendment even is.
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