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.

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."
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.

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.

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.
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.

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.


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  • icon
    That One Guy (profile), 24 Feb 2016 @ 4:33am

    Well if a reason is required...

    Just claim that the act of recording is 'Interactive performance art', with the goal of seeing how long it takes for the police to make a grab for the camera and/or issue a bogus threat to try to intimidate the person to stop recording.

    reply to this | link to this | view in chronology ]

    • identicon
      bob, 24 Feb 2016 @ 7:37am

      Re: Well if a reason is required...

      "I am gathering material for a project I'm working on.
      I am not at liberty to discuss the project with you."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:31am

    This wouldn't be necessary if law enforcement were actually held accountable for their crimes.

    Fix the disease before you try to ban the symptom.

    reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 24 Feb 2016 @ 6:41am

    Maybe I'm missing something here, but I was unaware of any law against recording public servants conducting their duties in public. I know it's an antiquated notion, but I believe the police (and other public officials) shouldn't be able to take action to prevent you from doing something that isn't illegal.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 24 Feb 2016 @ 7:03am

      Re:

      Yeah, that's what makes the judge's argument rather a moot point. He doesn't need to 'invent' any rights, he simply needs to realize that people recording police aren't breaking any laws, and as a result the police have no legal grounds to attempt to stop them, which means if they do they, not the people attempting to record are the ones in the wrong.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 7:55am

      Re:

      @JonC: there's a trap here. AFAIK these are civil matters, not criminal.

      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.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2016 @ 8:28am

        Re: Re:

        "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"."

        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 ...

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 24 Feb 2016 @ 8:36am

        Re: Re:

        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".

        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.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2016 @ 4:55pm

        Re: Re:

        "refusing to obey a lawful order of a peace officer"

        If the police officer orders someone to suck his dick, does the citizen have to obey?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 11:53am

      Re:

      sadly seems like the police have no respect for the law when it comes to stopping them from harrassing, intimidating, and assaulting law abiding citizens.

      reply to this | link to this | view in chronology ]

    • identicon
      Richard, 24 Feb 2016 @ 4:54pm

      Re:

      The case is proceeding on the Fourth Amendment violations, just not on the First Amendment one.

      reply to this | link to this | view in chronology ]

    • identicon
      Ben, 25 Feb 2016 @ 10:40am

      Re:

      That's why the Fourth Amendment claims are proceeding.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:42am

    So - there is no precedent here?
    Many rulings on this already were not taken into account?

    Certainly this will get rejected upon appeal.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:49am

    "we find no basis to craft a new First Amendment right"

    The first amendment is very broad and has centuries of precedent. This judge is simply incompetent.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:49am

    Seems to me the judge should be charged with tampering with evidence, as well as trying to suppress said evidence.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 24 Feb 2016 @ 6:51am

    The lesson of the "South Park Rule"

    From now on, when you are recording police activity, be sure to loudly announce some expressive political purpose for doing so. Like the hunters in South Park: "It's coming right at us!"

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 24 Feb 2016 @ 7:05am

      Re: The lesson of the "South Park Rule"

      Well it depends. Who will define what is expressiveness? The First Amendment is there precisely because nobody should be the arbiter of what speech is allowed and what is not.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2016 @ 7:37am

        Re: Re: The lesson of the "South Park Rule"

        Why make it a free speech thing? If you are in public, recording public events, isn't there heaps of precedent for being able to do so? Just the act of recording isn't speech, so if it is lawful, it doesn't need to be regarded as free speech.

        reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 24 Feb 2016 @ 9:46am

        Re: Re: The lesson of the "South Park Rule"

        "Expressiveness" is defined by the courts well enough that you can intentionally engage in it. For example, if you overtly declared that you were recording as an act of civil disobedience, you've solidly put your actions in the "expressive" category.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:53am

    and this is why there will never be true LAW in the USA! judges cannot even agree on what is right and what is wrong, what is protected, what isn't what conforms to the bill of rights what doesn't! in fact, the whole legal system is a complete joke! 99% of times courts come down against citizens, removing or at least disputing their rights to anything, which is the main reason the country is rapidly turning into a Police State!!

    reply to this | link to this | view in chronology ]

    • identicon
      Old time Jake, 3 Mar 2016 @ 8:47pm

      Re:

      The problem is that the general public actually think the country is in fact turning into a Police State..... Imagine working your daily job with a camera in your face, right or wrong it's disrespectful..... This country is in turmoil..... The criminals are the victims and the police are the accused???? Outrageous!!!! If your not doing wrong then comply and keep it moving....

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 4 Mar 2016 @ 7:37am

        Re: Re:

        The problem is that the general public actually think the country is in fact turning into a Police State..... If your not doing wrong then comply and keep it moving....

        Are you trying to help the process along?

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 6:56am

    > whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 7:00am

    Beat them at their own game

    Just say that you have a bad memory and you are just trying to comply with "See something, say something." You record everything so that just in case you need to send the video in because you might have seen something...

    reply to this | link to this | view in chronology ]

  • icon
    Haywood (profile), 24 Feb 2016 @ 7:03am

    If they aren't doing anything wrong.......

    The only reason they should object is; the photo / film makes a record of their transgressions. That's the logic I hear from the other side, when they reserve the right to spy on citizens.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 7:09am

    So what'd the moral of this story? Challenge police actions by arguing robbery and kidnapping instead of constitutionality?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 5:01pm

      Re:

      Moral of the story is: discretely record the basturds, do not display your recording device - hide it somehow.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 29 Feb 2016 @ 6:54am

        Re: Re:

        Moral of the story is: discretely record the basturds, do not display your recording device - hide it somehow.

        Then you might run into wiretap laws.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 7:27am

    Recording police officers doing nothing wrong is probably a good way to note what police officers should be doing under various situations. That way the next time a police officer does something wrong we have a larger array of similar situations to refer and point to where they did nothing wrong so that we can point out what should have been done instead. Recording police officers doing nothing wrong can be instructive of what should be done under various situations so that good behavior can be encouraged and recommended for future reference and training.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 7:53am

      Re:

      Neither uttered any words to the effect he or she sought to take pictures to oppose police activity.

      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?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 8:32am

      Re:

      Ahh so all recordings of police activity is for the purpose of making a training video.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 24 Feb 2016 @ 6:42pm

        Re: Re:

        The next time something bad happens and the cops claim they had no other choice we can point out that the law is responsible for a lack of police videos that we can use to point out a possibly better alternative course of action. Since this legal lack of instruction makes it more difficult for us to judge the situation we are to assume this is the purpose for said lack of instruction. To the extent that we can not determine how the cop should have responded based on prior videos or how cops normally respond to such situations we should simply assume the cop responded incorrectly due to the fact that the government is responsible for our ignorance.

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 7:37am

    So many things wrong with the ruling.
    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."

    reply to this | link to this | view in chronology ]

  • identicon
    dip, 24 Feb 2016 @ 7:42am

    oath logic

    seems to me, just popin one off the top of my head, that many have sworn an oath to PUT A STOP to the treasonous behavior this judge and others are currently actively participating in.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Whatever, 24 Feb 2016 @ 7:43am

    Finally, some good news for a change instead of the usual whining and bragging.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 8:42am

      Re:

      Oh there's whining going on all right. Cops appear to be some of the whiniest bitches I've ever had the displeasure of reading about.

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Capt ICE Enforcer, 24 Feb 2016 @ 8:04am

    Seriously

    So let me get this correct. I can take a picture of a flower and have that become protected due to my impression of its beauty and have that protectect under the constitution. But action videos or action photos of police does not count.

    reply to this | link to this | view in chronology ]

    • identicon
      Pyros, 24 Feb 2016 @ 8:25am

      Re: Seriously

      The court wants to find some way to make "Please stop recording me" a lawful order instead of a request or demand of just a private citizen. If its a Lawful order you can be arrested for disobeying a lawful order. As of right now law points to no authority for a cop to do this.

      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.

      reply to this | link to this | view in chronology ]

    • identicon
      Alan, 25 Feb 2016 @ 8:20am

      Re: Seriously

      Just like North Korea. The state must actively approve; otherwise all photography is forbidden. No difference in underlying principle. Welcome to the Gulag.

      reply to this | link to this | view in chronology ]

  • icon
    MarcAnthony (profile), 24 Feb 2016 @ 8:35am

    Fair notice

    The judge’s requirement that the action be explicitly in opposition of police activity shows that we need reform in how judges come to sit—and how they can be removed—from the bench, because that's not a cogent or defensible thought. Speech doesn’t have to be words; it can be symbolism that is oppositional, supportive, or even neutral, and the majority of photography is the latter. Ruling that the right to speech is contingent on vocal opposition or “fair notice” to a officer is actually compelling you to speak, where no such duty is owed to secure that right.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 8:45am

    What we have here is a redefining of word public , how does a public place with publicly paid officials in publicly purchased uniforms driving publicly purchased vehicles become private or court taboo.
    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.

    reply to this | link to this | view in chronology ]

  • icon
    David (profile), 24 Feb 2016 @ 9:26am

    If entertainers can't stop the paparazzi from taking picture when the entertainer is in a public place, how can anyone be stopped from taking pictures of the cops? Don't the same rules apply?

    reply to this | link to this | view in chronology ]

  • icon
    Ryunosuke (profile), 24 Feb 2016 @ 9:28am

    they aren't interpreting the US Constitution, they are interpreting the Chinese or Iranian Constitution.

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    John Thacker, 24 Feb 2016 @ 9:43am

    Incidentally, this judge is an Obama appointee who was filibustered by the Republicans, but he got exactly the 60 votes needed to overcome the filibuster in December of 2014. Not that anyone on either side anticipated him ruling on this issue.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 24 Feb 2016 @ 9:50am

      Re:

      It has never been possible to reliably predict how a judge will rule once on the bench.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Feb 2016 @ 5:05pm

      Re:

      What does that have to do with the topic at hand?

      Perhaps you should evaluate the rulings of all judges and correlate their rulings with who appointed them rather than posting about one data point.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 11:37am

    You have no rights if they make things inconvienent for the ruling class and their hired jack booted thugs.

    reply to this | link to this | view in chronology ]

  • identicon
    Mike Potter, 24 Feb 2016 @ 2:59pm

    judge

    I take it that U.S. District Judge Mark Kearney is proof that they don't administer an I.Q. test before appointing judges in the states. Maybe it's like Canada where all that is needed is to be in good standing with the party in power.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Feb 2016 @ 5:20pm

    Fuck The Police, they drew first blood.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Feb 2016 @ 9:18am

    This decision is directly negated by the supreme court decision that any person is not entitled to the responsible right to privacy in public spaces.While it may not be protected by the first amendment making it a crime violates the aforementioned amendment and does in fact violate freedom of express by imposing government rule of the right to enforce against expression through a means of speech.Speech being a language persons use and able to communicate and understand.

    reply to this | link to this | view in chronology ]

  • identicon
    Larry Wlison, 9 Jul 2017 @ 11:34am

    really.

    so if you record a criminal when he commits a crime you would need his written permission before doing that too.....same thing!!

    reply to this | link to this | view in chronology ]


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