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. Steve and Jim,
    Just curious why neither of you saw fit to say anything about Justice Holmes’ comment above. Anything?
    Evidently you must have skipped right over that partisan post. Right?

  2. PhillyT:

    I hope that was a bad joke that fell flat – can’t believe that your comment was the product of reasoned thought.

  3. Gawd Mark Kearney says “Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.”

    So as one begins filming, just say “Look at what these Mother Effers are doing now!” Then live-stream it, if possible.

  4. “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.””

    Logical fallacy #2,757 of this ruling – Once the officers told the people to stop recording or be arrested, their actions became about opposing police activity and therefore was expressive conduct.

  5. “… unless they can show that they are challenging or criticizing the police conduct.”

    So, it’s only protected speech if it’s critical?

    Speech that is approving isn’t protected?

  6. Unlike conservative-appointed judges who routinely do favors for donors, accept gifts from people with business before their courts, and are generally beholden to their nominators, liberal and centrist-appointed judges are independent enough to make stupid decisions like this one.

    1. If the videographer wasn’t interfering with the officer’s duties, the judge should suffer a First Amendment refresher course at his nearest online law school.

  7. “If I ask someone to not film or record my lawful behavior and then it gets posted or used for their purposes without consent, it seems to me that my rights have been infringed.”

    If you’re in public, good luck with that. You don’t have much expectation of privacy while in public.

    The ruling from this judge is so faulty and poorly reasoned that his fitness for the bench needs to be examined by the appellate court.

  8. What were they arrested for, and where do things stand with those charges, outside of First Amendment issues?

  9. Even using Judge Kearney’s standard, videoing police outside a house party could be construed as an expression of criticism of police conduct, couldn’t it?

  10. In the short term, this is an example of a foolish government regulation or ruling. As such there often can be found workarounds.

    For this, perhaps at the beginning of the recording session, the videographer could simply make a quick comment on the tape and introduce the officers’ recording. It is absurd that it comes to this, however it is almost an analogue of some of the hoops one goes through to have standing.

  11. When I was a very active member of VVAW we often told “reporters” to stop recording, taking pictures and to get the hell out. That was because most of them were the cops. Most of my old pics in the 3 letter initials files have me shooting them the 1 finger salute, they weren’t too good and being sneaky. Different circumstances completely now. Even back then the cops didn’t like their pictures take, now they think they are gawd and can do to anybody, anytime, anyplace whatever the hell they please, especially if that person has dark skin. I just posted in another forum about how Obama has never, will never appoint a “liberal” judge. Goes to show.

  12. If I ask someone to not film or record my lawful behavior and then it gets posted or used for their purposes without consent, it seems to me that my rights have been infringed.

    Where is the line between an officer (both a public servant and a private citizen) being taped in a routine procedure during which the photographer is asked or directed to stop and the above first scenario?

    I remember a conference at which I was a participant, and a local news crew showed up and set up. As we were starting, I privately told the reporter that she did not and could not have my permission to record any part of my person or speech. The mtg was not subject to public disclosure as it was a gathering of private citizens (some were public employees on their own time) to discuss certain interactions between diverse cultures.

    The crew packed up and left. If they had stayed, I would have openly expressed my concerns and left. There have been too many times when things have been taken out of context or spliced to suit a reporter’s and now a citizen’s agenda. Once “out there” it’ll stay forever no matter how innocent one is. “Tis well that thou hath been acquitted, t’would have been better if thou hadn’t been tried.” has even newer and subtle meanings now.

  13. I read the memorandum opinion. It is a classroom example of pathetically faulty reasoning producing a pathetically absurd conclusion. The ruling will not survive an appeal.

  14. I’m not American, however, with so many Americans being killed by police it’s not only right that police should be held to account for every death but the right, under the First, of every citizen to gain proof that those who protect and serve are doing just that.

  15. Wow, a judge appointed by the Consitutional scholar flubs a case in which there is a clear case of constitutionally protected behavior. Another sterling example of Obama’s legacy along with TPP,

  16. Kearney sounds like an Irish name. The cops were probably Irish. You can film some cops but Not The Irish! Right Kearney?

  17. The judge obviously has a lack of knowledge of “prongs”. The First Amendment has several prongs. Free speech by itself is one prong. The right to petition the government entity for redress of grievances is another. A person has journalist rights even if they do not work for the high fallutan New York Times. But to petition the government for redress of grievances requires that we bring evidence and a video tape of police conduct is evidence of conduct which we want the government to redress. Nuff said. The judge needs to understand prongs.

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