Federal Court: First Amendment Does Not Generally Protect Public Filming Of Police In Public

gavel2video cameraFederal and state courts have handed down a virtually uniform line of rulings protecting the right of citizens to film police in public. That is until the February 19th decision of U.S. District Judge Mark Kearney. Kearney was only put on the federal courts in 2014 by President Obama but has written his first major ruling in curtailing the rights of citizens under the First Amendment. Kearney used that there is no First Amendment right to film police unless they can show that they are challenging or criticizing the police conduct.

The decision concerned Richard Fields, a Temple University student, who took a cellphone photo of roughly 20 police officers standing outside a house party. The police officer asked Fields to leave and stop taking pictures. Fields refused and officer then arrested him.

In a second case, Amanda Geraci was a legal observer at a protest. Geraci moved closer to possibly film the arrest and says that an officer “attacked her” by physically restraining her against a pillar and preventing her from videotaping the arrest. Geraci claims that “I was just legal observing.”

None of this was enough for Kearney who dismissed their First Amendment Retaliation claims on Summary Judgment:

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.”

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct.

Because Fields and Geraci do not adduce evidence their conduct may be construed as expression of a belief or criticism of police activity, under governing Supreme Court or Third Circuit precedent we do not find they exercised a constitutionally protected right for which they suffered retaliation. This is fatal to their First Amendment retaliation claim. We find the citizens videotaping and picture-taking in Montgomery, Gaymon, Fleck and even Robinson all contained some element of expressive conduct or criticism of police officers and are patently distinguishable from Fields’ and Geraci’s activities.

However, the plaintiffs stated that they were there as witnesses in seeking to monitor the government and that “observing is a component of ‘criticizing’ and citizens may engage in speech critical of the government.” The court simply rejected those claims as insufficient but left many scratching their heads as to what is required. It appears that they have to loudly protest or articulate the specific use of function of filming to be “expressive conduct.” The court rejects that the act of monitoring and filming police is a form of expressive conduct for citizens. Without offering much insight, Kearney hold that

“The conduct must be direct and expressive; we cannot be left guessing as to the ‘expression’ intended by the conduct . . . Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is ‘sufficiently imbued with elements of communication’ to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.”

Kearney’s standard would leave most public filming of police unprotected. Most citizens pull up to a scene and film the police, who are after all acting in public. I understand Judge Kearney’s view of the limited nature of free speech and he is not alone in such a good-faith view. However, even if you agree with that narrow construction, his test seems arbitrary and uncertain in distinguishing between common encounters between police and citizens.

What do you think?

Here is the opinion: Kearney Opinion

55 thoughts on “Federal Court: First Amendment Does Not Generally Protect Public Filming Of Police In Public”

  1. So… you have to surrender your 5th Amendment rights, to access your 1st Amendment rights?

  2. This judge comes from a law firm and handled commercial litigation matters. What I find frightening is the very limited knowledge some new judges have in areas outside of the area they practiced in. It’s all well and good for this judge to brush up on such matters in chambers, but let’s see how he handles a criminal trial – where someone’s liberty is at stake and he has to make decisions on the spot, in court. I think any new judge who did not have criminal and trial experience as a lawyer should take mandatory classes.

  3. The case should be reversed on appeal and remanded, at which point it will likely be dismissed on other grounds.

  4. Tara thanks for the observation….the same ppl troll scotus blog and lawfare…..where the potus and fbi tried to make their hail mary case. And you enlightened one….from where do you hail? And how many like minded behind you?

  5. These comments prove, beyond a reasonable doubt, that professor Turley has the dumbest commentators on the internets.
    Or he likes to troll retards.
    Amazing the level of legal stupidity on this supposedly legal blog. And I don’t even have a law degree to back that up.

  6. So on the spot you either agree with the cops….and then no right to record. Or you disagree with the cops and get to record. And if you disagree with the cops you are charged with obstructing xyz…..which you can also be charged with agreeing with the cops but no video. Sounds like were screwed. Im reversing what i originally said about apple.

  7. Francie…I was wondering the same thing. Maybe dash cams, body cams, security cameras, etc. can only be activated if those filming are also “criticizing” at the same time.

    1. Tom Nash – I think you would have the right to consent to be recorded with a body cam. I hadn’t considered it from that standpoint before, but there is a privacy claim there.

  8. So, does Judge Kearney want to also protect me from all the daily filming I am subject to by surveillance, traffic, and security cameras that track and film my public activity? Hmmm?

  9. The demonstrator (also a professor) at Mizzou who threatened the so called journalist for filming the demonstrator’s organizing was on the cutting edge. If, on the one hand they were meeting to discuss how to go forward with their demonstrations (a planning or strategy meeting) then she might have the right to tell the so called chinese journalist to go fu off.

    And Scarecrow’s reference to 1984 is also spot on. Back in 1984 we had a lot going on with police brutality. Or maybe he was referring to George Orwell’s 1984. Which was written before 1984.
    Gosh, Josh, these things are confusing.

  10. So…what’s the point of “challenging or criticizing the police conduct” if you don’t have the video to start with/ Oh that’s right…they don’t want any challenges…welcome to 1984…

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