February 23, 2016
You have no First Amendment right to videotape or take pictures of police officers without a specific, critical reason for doing so, according to a ruling by the U.S. District Court for the Eastern District of Pennsylvania.
The court ruled Friday in Fields vs. City of Philadelphia that absent "any state purpose of being critical of the government," your freedom of expression and speech is not applicable when recording the activities of police officers.
The decision comes off of a joint lawsuit filed by Amanda Geraci and Richard Fields. In 2013, Fields, an undergraduate at Temple University, was recording about 20 police officers outside a house party on campus.
Fields refused to leave when asked by officers, who subsequently detained and handcuffed him, taking away his cell phone and putting him in the back of a police van. His reason for filming was that he "just thought that would make a great picture "
Geraci, a self-described "legal observer," was filming an environmental protest in Philly a year earlier. When she moved close to an officer arresting a protester, she said she was physically restrained by an officer and prevented from recording the arrest.
Both sued the city on the grounds they faced retaliation for exercising their First Amendment rights.
The court is allowing Geraci's claim of excessive force and Fields' claims of false arrest and unreasonable search to go to trial.
But the court ruled that the First Amendment does not apply to photographing police unless there is a specific action challenged by a citizen. Here's the court's conclusion, via the Philly Law Blog:
We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions. The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims.
Eugene Volokh, legal blogger for the Washington Post, contended that this decision is in disagreement with recent decisions from the U.S. Court of Appeals.
He also argued against the premise of the court's decision, saying the First Amendment protects the gathering of information, which is what Fields and Geraci were doing. More from Volokh:
Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it’s not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.
Your being able to spend money to express your views is protected even when you don’t say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren’t actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that takes place later). The same should be true of your recording events in public places.
According to Volokh, an appeal of the decision is planned.