Monday, 04 April 2016 09:53
By Jordan Crews
There is no First Amendment right to observe and record police officers absent some other expressive conduct, a federal district court in Pennsylvania ruled last month. This is a ruling that has generated considerable disagreement from members of the news media.
This case involved two different incidents. In the first, a college student used his cell phone to take a picture of about 20 police officers standing outside a home hosting a party. He took the picture because he thought it “would make a great picture.” An officer approached him after he took the picture and asked him to leave. The student, believing he had done nothing wrong, refused to do so. The officer then detained him, handcuffed him, and took and searched his cell phone.
The officer ultimately cited the student for “Obstructing Highway and Other Public Passages.” The student sought damages under a federal statute against the officer, alleging the officer retaliated against him for exercising a First Amendment right to “observe and record” police.
In the second incident, a self-described “legal observer” (one who observes interaction between police and civilians during civil disobedience or protests) attended a public protest in Philadelphia and brought with her a camera to film the scene. During the protest, the police arrested one of the protestors. The legal observer moved toward the scene to get a better view and videotape the arrest.
One of the officers then allegedly restrained her and prevented her from filming the arrest. The police eventually released her without citing or arresting her. She, like the student, sought damages under a federal statute against the officer and the City of Philadelphia, claiming her peaceful attempt to observe and record police was protected by the First Amendment. The officers sought summary judgment on both plaintiffs’ First Amendment retaliation claims.
Is this type of conduct protected by the First Amendment?
The issue before the court was whether citizens “enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct.” To prevail on a First Amendment retaliation claim, the plaintiff must prove, among other things, that he or she engaged in constitutionally protected conduct.
Conduct is constitutionally protected if it is expressive. 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.”
Turning particularly to the issue of when filming or photographing may be protected by the First Amendment, the court noted that “photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.” The court also noted, however, that no authority has held that a constitutional right to observe and record police exists in the absence of protest or criticism, and the court refused to expand First Amendment protection to such conduct.
After determining the correct legal standard to apply, the court turned to the facts of this particular case. Neither of the plaintiffs asserted that they engaged in conduct critical of the government. Rather, both claimed they were only observing police activity. The legal observer attended the protest intending only to observe interactions between the civilians and the police. The student also did not allege he engaged in speech or expressive conduct critical of the police; he was merely walking down the street and stopped to take a picture of something he found interesting.
Thus, the court held that neither the legal observer nor the student had engaged in conduct protected by the First Amendment. Accordingly, the court granted summary judgment in the defendants’ favor on the First Amendment retaliation claims.