In yet another constitutional setback for the United States, a Federal Judge ruled that citizens do not have the First Amendment right to record police in public. Unless of course one makes clear their intention of calling out the officer’s misconduct before filming.
US District Judge Mark Kearney of the Eastern District of Pennsylvania, who has been on the bench little more than a year, issued his ruling on two consolidated cases against the state of Philadelphia. In both cases individuals had their cellphones confiscated while attempting to exercise their rights, by either filming police activity, or being stopped before the filming could take place.
The two cases were consolidated to determine “whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.” In his ruling, Kearney managed to pick and choose which aspects of the First Amendment to address and which to disregard. His decision focused on the freedom of speech portion and seemingly ignored the aspect that addressed freedom of press.
The except below is from his 21 page decision:
“We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct.”
“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. Because we find this issue dispositive on all of Plaintiffs’ First Amendment retaliation claims, we first address whether Fields’ and Geraci’s conduct is constitutionally protected activity under prevailing precedent.”
“We analyze Fields’ and Geraci’s conduct mindful of the Supreme Court’s admonition “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ …. [I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. Expressive conduct exists where ‘an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it. [T]his is a fact-sensitive, context-dependent inquiry, and … the putative speaker bears the burden of proving that his or her conduct is expressive.”
“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.”
The claim is that neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct in order to criticize the actions being taken, but rather to casually film an interesting scene. Constitutionally this makes no difference to one’s right to film those who represent the growing occurrence of inappropriate police conduct and rising police shooting rate in this country.
Despite the ruling and one’s personal feelings on the matter, once one observes the details of each case, it becomes clear that both were obvious constitutional violations by overtly hostile and aggressive officers. According to Pinac,
In the first case, a woman named Amanda Geraci tried to record Philadelphia police arresting a citizen during an anti-fracking protest on September 12, 2012 when an officer charged at her her in a full run, thrusting her forearm against Geraci’s neck while shoving her against a glass as other cops surrounded them to prevent anybody else from recording.
In the second case, a Northwestern University student named Richard Fields was strolling down the street on September 13, 2013 when he came across a group of Philadelphia police officers standing outside a home hosting a party and figured it would make an interesting photo, but ended up handcuffed, detained and arrested by a cop named Sisca, who asked, “do you like taking pictures of grown men?”
The average Americans can hardly name the Vice President of this country today, let alone be able to verbalize their exact rights in a given situation. The average American is vastly ill-equipped to stand toe-to-toe with a hostile police officer and tell them that they feel the officer’s conduct is unconstitutional, therefore, they now have the right to film; this is assuming they do not get beaten, shot, or at the very least, their cellphone confiscated.
One Philly Law Blog writes:
“Apparently if you want to film the police, you have to yell at them, criticize their conduct, or perhaps even do a little jig. The court held that there is no First Amendment right to merely recording, because that’s observation and not “speech.”
“How does this affect the public practically? I guess if you want to film the police, also make sure to maybe yell at them too. Perhaps do a little jig while you’re filming, or sing a Taylor Swift song. Merely filming the police without something more is not protected First Amendment speech in Pennsylvania.”
This judge is setting a very dangerous precedent wherein those not aware of their rights are somehow no longer entitled to them, and this is not only absurd, it is blatantly unconstitutional; lest we forget that officers of the law are here to protect citizens of this country, not work against them as some separate and deceitful entity seeking to trick the public into custody.
Sources: https://photographyisnotacrime.com/2016/02/22/rookie-federal-judge-in-pennsylvania-rules-citizens-do-not-have-first-amendment-right-to-record-police/, http://www.nola.com/opinions/index.ssf/2016/02/first_amendment_police.html