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