Mimesis Law
28 May 2020

Judge Kearney’s Blurry Picture of First Amendment Rights

Feb. 26, 2016 (Mimesis Law) — Why can’t we, the people, film the police when they are out in public? Didn’t your mom tell you to always be on your best behavior? If you aren’t doing anything wrong, why do you care if you get recorded?

Last week, Judge Mark Kearney of the United States District Court for the Eastern District of Pennsylvania, located in Philadelphia, said the people don’t get to record police activity. He says the First Amendment doesn’t protect recording the police in public, unless you tell them you are protesting something.

Two separate lawsuits were brought against the City of Philadelphia based on similar facts. Richard Fields saw a bunch of cops breaking up a party and took a picture. One of the cops took offense. After directing him to leave the public sidewalk, Officer Sisca arrested Fields, cuffed him, and searched his phone.

Amanda Geraci went to a protest and intended to observe police behavior. Based on the millions of dollars historically spent by Philadelphia to settle police misconduct lawsuits, she probably figured there would be something to see. And, it was no surprise, she was right. Geraci was forcefully prevented from filming an arrest, though she was not actually arrested.

Fields and Geraci sued the police for a violation of their First Amendment rights, among other things. They argued the First Amendment protects their right to observe and record police behavior in public. The police, of course, asserted qualified immunity.

Qualified immunity. That’s the defense where the police say they didn’t know they were violating your rights, because they didn’t know you had a right. And then the Court agrees and the police win. Judge Kearney found there was no First Amendment protection in this case for recording police activity, unless there is also some challenge to police conduct along with the recording.

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.

[The court] find Fields and Geraci offered nothing more than a “bare assertion” of expressive conduct. Because this bare assertion falls short of their burden of proof following discovery, Fields and Geraci cannot proceed on a First Amendment retaliation claim under our customary analysis.

Apparently, if Fields and Geraci had observed police wrongdoing and recorded it, then it would be okay if accompanied by some expressive “assertion.” But just recording activity without that “assertion” is not okay. Which doesn’t make any sense. It’s a distinction without a difference. Kearney said this case was different than other cases where courts have made it clear recording police is protected activity:

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.

As Radley Balko points out, this is the first time a judge has ruled there is no right to record public officials performing their public duties. Other courts considering recordings of police have taken a broader view of the First Amendment.

Kearney, on the other hand, took an extremely narrow view of the First Amendment, deciding the case solely on the free speech portion of the First Amendment. But that’s only part of the equation when it comes to exactly what this amendment protects. In addition to free speech, it also protects the right to a free press. Freedom of the press is grounded in the collection and dissemination of information about government misconduct. Kearney dismisses that idea, simply noting neither plaintiff was a member of the press.

The world has changed. The reporting of news has evolved far beyond the traditional beat reporter. In Glik v. Cunniffe, the First Circuit Court of Appeals explained why the First Amendment is not limited to “professional journalists”:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events  [16] come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

The “citizen-journalist” has become an important source of daily news. From Rodney King to Walter Scott, a lot of bad behavior has been uncovered by citizens with cameras. Of course, it has also caught some pretty good behavior by the police. But under Kearney’s ruling, none of these three videos would be entitled to First Amendment protection, because they were filmed by regular folks just observing and recording. Which, in turn, means it’s likely no recording of police would ever be entitled to First Amendment protection.

Even the former Philadelphia Police Commissioner didn’t fight the public’s right to record police officers.

The ruling also appears to pit Kearney against stances by former Police Commissioner Charles H. Ramsey, who in 2011 issued a memo to all Philadelphia officers saying they “should reasonably anticipate and expect to be photographed, videotaped and/or audibly recorded by members of the general public.”

The First Amendment, at its core, protects the right to challenge governmental authority. There is no more blatant display of authority than uniformed police officers in the streets. A citizen’s ability to record that display of authority is the citizen’s ability to challenge that authority, whether directly or indirectly.

In each of these cases, the police officer involved abused his power to control a citizen in a public area. It makes sense that kind of officer wants to be shielded from the public eye. Too bad Judge Kearney agreed to become the shield.

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