Don’t “Shoot!”: Recording Police Behavior Doesn’t Qualify for First Amendment Protections (At Least in the Eastern District of Pennsylvania)

cldcBy Samuel Daheim

Our constitutional right to the freedom of expression under the First Amendment reaches a broad spectrum of wide-ranging activities. From flag burning to expenditures on campaigns for elected governmental office, the First Amendment protections of expression reach the lives of all U.S. citizens. However, on February 19th of this year, the federal district court for the Eastern District of Pennsylvania held that First Amendment protections of expression do not cover observing and recording police activity in a public forum where such observations and recordings are not accompanied by criticism or challenge to police conduct.

This case, Fields v. Philadelphia, involved two separate challenges to police actions taken in response to purportedly expressive activity. Both plaintiffs argued, among other things, that their First Amendment rights were violated when police took actions in retaliation to their exercise of free expression.

In the first case, Mr. Richard Fields was walking on a sidewalk when he spotted approximately 20 police officers standing in a large group. He stopped and used his cell phone to take a photograph of the large group, for no other reason than that “[i]t was an interesting scene,” and that “[i]t would make a good picture.” After he captured the photograph, an officer approached Mr. Fields and questioned him, asking “[d]o you like taking pictures of grown men?” Fields responded that he was just walking by. The Officer then asked Fields to leave, and he refused. In response, the Officer detained Fields by handcuffing him and placing him in a police vehicle. The Officer emptied Fields’ pockets, took and conducted a search of his phone, and issued Fields a citation for Obstruction of Highway. He then returned the phone and released Fields from custody.

In the second case, Ms. Amanda Geraci was acting in her capacity as a “legal observer” during a protest against hydraulic fracturing. As a legal observer, Geraci watches “interactions between police and civilians during civil disobedience and protests.” During the protest, Philadelphia police arrested a protestor. Ms. Geraci moved closer to the incident to record the arrest on videotape. However, before she could get close enough, she claims a police officer attacked her. She explained that the officer physically restrained her against a pillar to prevent her from videotaping the arrest.

Both Mr. Fields and Ms. Geraci argued to the Court that observing and recording official police conduct qualifies as expressive conduct for First Amendment purposes. The plaintiffs argued that observing is a component of “criticizing,” and speech that comments on or criticizes the conduct of government squarely falls under First Amendment protections. The Court itself even noted that it is the law of the United States that the First Amendment does protect a significant amount of criticism and challenge directed at police officers. Quoting the Supreme Court, the district court pointed out that the freedom of citizens to oppose or challenge police action is a “principal characteristic[] by which we distinguish a free nation from a police state.”

However, despite the Court’s willingness to acknowledge the First Amendment’s broad protections to challenges of police behavior, it held that the plaintiffs’ actions in these cases were not expressive. The Court acknowledged that other circuits, including the First and the Ninth, had come out differently on the issue. However, it reasoned that the Third Circuit, in which it sits, had refused to extend First Amendment protections to observations and recordings of official police conduct unless such actions were taken with the express purported purpose of challenging or protesting the police conduct.

The ACLU appealed this case last month. A circuit split on the issue, which would be the result if the Third Circuit affirmed the decision given the precedent in other circuits mentioned earlier, would render the subject ripe for review by the Supreme Court of the United States. For now, though, if you find yourself in the eastern district of Pennsylvania with your lens on law enforcement, I would advise you to express loudly your objections to police behavior. I’m sure that’ll end well for you.

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