1st Amendment and the right to record police.

A recent decision by Judge Kearney in the District Court of Eastern Pennsylvania has caused some uproar online. According to the news, Judge Kearney has determined that the act of recording police activities is not always protected by the 1st Amendment. We've long been told that in fact, recording police activities is protected by the 1st Amendment, so naturally I was curious about the case. What follows is a mid-level dive into the issues surrounding the case.

Background

The case involves two separate incidents.

In Richard Fields' incident, he stopped to take a photo of a house party that was being attended to by 20 police officers. When his actions were questioned by a police officer, he replied that he was just walking by, but when asked to leave Fields stayed his position and proclaimed his right to stand his ground, upon which he was detained (handcuffed) and his phone seized and searched. He was later released (after being cited for a violation) along with his phone, and the image that was taken was not deleted. Fields filed two claims, one for retaliation against his 1st Amendment right and another for a violation of the 4th Amendment right against illegal search and seizure.

In Amanda Geraci's incident, she was videorecording a protest against fracking at a convention center. Police officers moved to direct protesters in order to allow access to the convention center, at which point an arrest was made of one of the protesters. Geraci moved in close to record the action, at which point she was directed to move back. According to Geraci an officer physically pinned her to a column to prevent her from recording the arrest. Geraci filed two claims, one for retaliation against her 1st Amendment right and another for a violation of the 4th Amendment right against excessive use of force (an illegal seizure).

In Fields' case, his 4th Amendment case was allowed to proceed to trial, while Geraci's was denied. In both cases, their 1st Amendment complaint of retaliation was denied.

Discussion

It turns out, what we commonly assume to be a right, is in fact not applied equally across the country.

While other Circuit Courts have established within their jurisdiction that recording of police is itself a 1st Amendment right, the 3rd Circuit Court has not.

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

Contrary to popular belief in the news media, back in 2012 when SCOTUS declined to review ACLU v Alvarez, their action did not itself establish a 1st Amendment right to record police in public. What it did do is establish that a ban on recording police violated the 1st Amendment. In the former there is a presumption that the public has an automatic 1st Amendment right to record police activities; in the latter there is a presumption that there are times where a 1st Amendment right to record police activities is established, and therefore a blanket ban would violate the 1st Amendment.

Accordingly, it requires careful parsing of Judge Kearney’s words, to understand what he is saying. He is not offering a personal or political opinion on the automatic establishment of a 1st Amendment right to record police activities. He is stating that, under the jurisdiction of the 3rd Circuit Court, he is obliged to stick to his circuit’s decisions.

“While acknowledging activities observing and recording the police may be protected, our [3rd Circuit] Court of Appeals has never held speech unaccompanied by an expressive component is always afforded First Amendment protection.” - Judge Kearney

In fact, Judge Kearney specifically cites Heffernan v. City of Paterson, where the 3rd Circuit Court of Appeals required that a 1st Amendment right be expressly established, rather than implied, before one could determine that retaliation against that 1st Amendment right had occurred. While SCOTUS is currently deciding Heffernan v. City of Paterson, you shouldn’t hold your breath on that one, as conservative jurors have tended to side with the requirement to expressly establish a 1st Amendment right.

That case notwithstanding, Judge Kearney is still bound by his jurisdictional circuit.

“We recognize courts outside the Third Circuit and at least one noted commentator have found observing and photographing police activity without any criticism of the government fall within the realm of First Amendment protected activity. While we understand these opinions, the present law in this Circuit does not recognize a First Amendment right to observe and record without some form of expressive conduct and photographing police is not, as a matter of law, expressive activity. - Judge Kearney

Since SCOTUS has never directly dealt with this particular issue of the expressed or implied 1st Amendment right to record police activities, whatever the separate Circuit Courts say, applies to their regions.

Conclusion

The bottom line is, the rights you enjoy in the west coast are not the same as in the east, and until SCOTUS explicitly says otherwise, you can't assume to have the blanket right to record police activities. With this case highlighting the disparity between Circuit Courts, it appears this ruling may wind its way to SCOTUS, at which point we may finally have clarity throughout the country.

More importantly, if you read any ACLU advice on the matter of police confrontations, it is clear that you do not have a right to disobey an officer's direction. That people are frequently allowed to disobey an officer's direction, is really at the officer's discretion.

Finally, local ACLUs are starting to post apps that allow you to record activities that are simultaneously uploaded to their server, in order to preserve evidence. Use it, but don't be a jerk about it; no one likes to have a videorecorder shoved in their face and spoken to, belligerently.


PS. I'm too lazy to cite all of the source materials, but they're all directly from the cases involved, and no third-party opinions were culled and misrepresented as mine.