Federal 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.”
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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
I do video surveillance for a living. If it is in public, then it’s public. No exceptions for cops, politicians or royalty, in the USA.
What Nick said, at least here in California when there’s no reasonable expectation of privacy, although sometimes there is a reasonable expectation. For instance, when paramours have lunch on the patio at the Ritz, one can’t electronically record the other in their private conversations without the consent of the other. The same goes for two business associates in negotiations on the veranda. Generally, there has to be consent even when there are other persons within earshot.
But a cop’s actions are inherently public while s/he’s on duty, whether in private conversation or in taking witness statements while gathering evidence for an incident report, let alone invading a private “house party.”
Gary T writes, “Personally, I am not sure how filming the police is an expression of free speech, so technically the court might be right.”
It is self-evident that “filming” is an absolutely necessary link in the chain of either photographic or video-graphic expression. We do it all the time, for instance, when taking pictures or video of family so we can retain expressions of the moment and keep them for the future. The final ‘expression’ would be rendered impossible if the filming were not accepted as a necessary adjunct of the expressive process.
Does this mean that the ubiquitous police chase on TV will now be deemed illegal?
Gary T., the matter is proceeding to trial on various Fourth Amendment claims. I strongly disagree with the judge’s analysis here, but it did not end the cases in which the officers may still be found liable for constitutional violations..
The Judge framed the issue as follows: whether there is a First Amendment right to record the police in the absence of criticism of or a challenge to police conduct. How is it that the First Amendment only protects you if you are criticizing or challenging someone? What if you support them? What if you don’t know whether you support them or not and want to review the recording to make up your mind on whether you support them? This is an example of extremely flawed reasoning.
My sense is that this Judge feared being reversed by the Third Circuit on this point and for that reason took a coward’s approach instead of doing the right thing.
It’s not just tough cases that make bad law, it’s also dunderheaded judges.
Another statist case coming from the federal Third Circuit court of appeals.
This one asks the isolated question, does a citizen has a free speech, freedom of expression, right to film police on public property.
The cops in two cases confiscated a camera cellphone from people filming them, and doing nothing more.
They claimed they had a first amendment right to film the cops. 3rd Cir sez no.
3rd Cir sez, that unless the cops confiscated the camera pursuant to trying to limit the plaintiffs’ actual expression of free speech, that they did not have the entitlement to film the cops as a matter of federal free speech right.
(You all may remember why this issue is near and dear to me, having filmed agents of the state infringing upon my 1st Am. rights: https://www.youtube.com/watch?v=NIsnbUxAPhs)
The court didn’t inquire as to whether there was a 4th Am. seizure violation, or other right being violated, nor apparently did it inquire as to the other several Clauses of the 1st Amendment, other than free speech.
Personally, I am not sure how filming the police is an expression of free speech, so technically the court might be right.
But if the plaintiffs had thought through their civil complaints more thoroughly and argued a little more intelligently, I believe there was a violation of other 1st Am rights, like the freedom of association, freedom to peaceably assemble, freedom of the press, freedom to file petition for grievance, and probably some other related rights.
The appellate court ruling is somewhat sophist; they are apparently talking about free speech clause and not any other clause of the 1st Am. A little strange to say the least, and if this was pro litigants, the ruling also offends Haines v Kerner.
Randall,
I didn’t take Joseph’s post as confirming this view of the 5th was his view of the 5th. Both cases, this First Amendment and the 5th Amendment demonstrate just how fragile unalienable rights are. There are no guarantees when human nature is involved.
Joseph, I think people make too much use of the 5th A. when they should use the 1st. The inalienable right to remain silent is first recognized and guaranteed there. Oh!, and you seem to believe that the 5th “permits” silence. But the 5th only applies to silence in the context of “not being compelled to incriminate oneself in a criminal case.”
Thank you Joseph, I believe that was exactly the case. I remember thinking at the time that I should get the Miranda warnings laminated and affixed to the back of my driver’s license. I don’t believe I should be considered guilty before innocent simply because I refused to speak with LEO but then again we have judges like Kearney that are flipping our constitution on its head.
Olly,
IIRC, when remaining silent with a LEO, I believe there are two options:
1. Tell the LEO you remain silent because the 5th Amendment permits such.
2. Omit stating your 5th A. protection.
I believe the current law is as such: If you remain silent without stating the 5th A. permits silence, the court can condemn you for your silence. If you remain silent and state the 5th A. permits silence, then the court can not condemn you for your silence.
1. If possible, do not talk to a LEO. If you are a victim, prepare to be arrested. It happens every single day. For victims, the ideal scenario is to have your attorney speak to the LEO for you. Calling a LEO can result in a LEO killing you or a loved one.
2. When you choose silence with a LEO, you absolutely must inform the LEO the 5th Amendment permits your silence. Never select silence with a LEO without stating the 5th A. permits your silence.
I suppose the legal logic is if you are silent without stating legal authority, the court has decided they can presume your silence indicates guilt. The 5th Amendment only allows silence if/when you “show your 5th Amendment badge” to the LEO, by stating it. Otherwise the protection does not exist.
Renegade,
Perhaps you do not realize that a LEO performing his job exists solely at the behest of the public who pay taxes, otherwise his job does not exist. Are you blind to the difference between the above and the scenario you described?
Further, did you not know that LEO carry guns and badges and clubs and mace and tazer guns, all deadly weapons, are trained in their use, and their normal course of business is to imprison the public they allegedly “serve.”
Did you not know that LEO kill over 1k citizens annually and that the FBI has not even mandated that LEO deadly use of force be listed on federal docs? Federal law mandates cities, states, and counties report all manner of facts, all of which pale in importance compared to counting the number of times LEOs kill citizens.
Are you possibly a paid government tool described in Edward Snowden’s documents to further government memes in social forums?
The Obama appointee is just being consistent w/ a President who hates the 1st Amendment.
I recall a case JT posted about a case up in Palo Alto, CA where a man had injured or killed another motorist in a collision. When questioned by police on the scene he remained silent and that was held against him in court.
Here we have people clearly exercising their First Amendment rights and they are supposedly not protected by remaining silent. This decision would also seem to support an argument against police body cameras. If the people are not allowed to video officers in the line of duty then why would the people have a right to attach their video recording device to the officer?
He isn’t in my district, so I am not following it.
Yeah at least three prongs of the First Amendment are at issue. The judge is prongless.
This country needs a Revolution. Not even joking or exaggerating in the slightest. It is time. Our govt is crazy.
We NEED a one-page FIRST AMENDMENT de jura list of CITIZEN RIGHTS!!! The more complex and vague it gets, the more citizens self-censor and the more corrupt government gets. How about it Prof. Turley? Will you distribute such a page? Or must it all remain so complex and vague? One day it’s fine to film cops, the next day it isn’t…
G. Tod Slone, Ed.
The American Dissident
Are rulings any good if they cannot be enforced? Everyone has a phone camera. Anyone can post photos on line and they can go viral. When an act doesn’t seem instinctively wrong to most people, it’s unlikely that anyone will comply.
Thanks again, Obama.