In an embarrassing Constitutional setback for the American judicial system, a federal judge in Pennsylvania ruled on Friday that citizens do not have the First Amendment right to record police in public.
That is, unless those citizens are telling the cops to go fuck themselves.
Then it’s protected speech.
That’s the twisted logic coming from Judge Mark A. Kearney, a federal judge for the United States District Court for the Eastern District of Pennsylvania, who’s been on the bench a little more than a year.
Prior to that, he was a shareholder in a high-profile law firm in Philadelphia specializing in commercial litigation, so perhaps he is not fully versed in First Amendment law, which is why he dismissed a First Amendment retaliation claim from two citizens who were arrested by Philadelphia police on two separate occasions for recording officers in public.
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 other words, had either of these citizens told the cops to go fuck themselves as they recorded or took photos, then their actions would have been protected under the First Amendment in Kearney’s view.
Of course, knowing Philadelphia police, that would probably have earned them a beating in addition to the usual First Amendment abuses practiced by the department.
In fact, the two suits were part of five similar suits filed by the ACLU of Pennsylvania against the Philadelphia Police Department in September 2014, two months after Kearney had been nominated to the federal bench by the president.
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?”
Sisca, who first name is probably Joseph, ordered him to leave, but Fields asserted his First Amendment right and was charged with obstructing the highway, even though he was on the sidewalk the entire time.
In making his decision, Kearney viewed the First Amendment through the most narrowest of lenses, focusing on the freedom of speech portion while completely ignoring the freedom of the press portion.
Here are excerpts from his 21-page decision, which can be read in its entirety here:
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. 27 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. 28 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’ …. ” 29 “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. “30 “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. “’31 “[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.” 32
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 way he words it, the only way the recording of police in public can be protected is if the person holding the camera partakes in “expressive conduct.”
That could perhaps be dancing as 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.
Mickey Osterreicher, general counsel for the National Press Photographers Association, emailed the following statement to Photography is Not a Crime on the decision:
The court did rule against summary judgment under the “Fourth Amendment claim challenging Officer Sisca’s arrest and search and seizure of Fields’ cell phone and for the officers’ excessive force upon Geraci.”
The decision is not surprising given the Third Circuit’s decision in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010)(right to record not clearly established for qualified immunity purposes).
It is interesting to note that a somewhat similar longstanding case in NYC was overruled on narrower grounds in Higginbotham v. City of New York, 14-CV-8549 (PKC) (SDNY). The defendants in Higginbotham relied on Pluma v. City of New York, No. 13 Civ. 2017(LAP), 2015 WL 1623828 (S.D.N.Y. Mar. 31, 2015), where the court dismissed the First Amendment claim of a “citizen journalist” who was pepper-sprayed while filming police activity in Zuccotti Park. The court stated that “[t]he only potentially expressive actions that Plaintiff took leading up to his injury . . . involved filming” the police activity, but went on to note that “neither the Supreme Court nor the Second Circuit has addressed the right to photograph and record the police.” The court concluded: “It consequently remains unclear whether Plaintiff’s filming was protected by the First Amendment.” But it further held that, even assuming a First Amendment interest, the complaint had not alleged a causal connection between the plaintiff’s activity and the pepper-spraying.
Pluma appears to rely on a line of cases suggesting that recreational photography or filming for personal use is not protected by the First Amendment, because it lacks an “identifiable message sought to be communicated, [and] an identified audience to whom a message [is] being broadcast.” Porat v. Lincoln Towers Community Ass’n, No. 04 Civ. 3199(LAP), 2005 WL 646093, at *4–5 (S.D.N.Y. Mar. 21, 2005) (holding that a photo hobbyist’s recreational photography of residential buildings was not protected).
In Higginbotham the court found that “Whatever the merits of that legal proposition, it does not apply to a journalist who was filming a newsworthy protest for broadcast by a news organization. See Porat, 2005 WL 646093, (contrasting the plaintiff’s case with “the classic First Amendment example of a reporter attempting to take a photograph for publication with a specific story”). Pluma may be distinguishable on the basis that the plaintiff in that case, although he called himself a “citizen journalist,” did not allege that he ever intended to disseminate his videos: the complaint merely alleged that he went to Zuccotti Park “with hopeful reflection upon the efforts of Occupy Wall Street.”
“To the extent Pluma is not distinguishable, however, the Court declines to follow it. While videotaping an event is not itself expressive activity, it is an essential step towards an expressive activity, at least when performed by a professional journalist who intends, at the time of recording, to disseminate the product of his work. See generally Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L. Rev. 335, 381–86 (2011) (arguing that “the modern process of image capture is an essential element in producing, and ultimately disseminating, photos, videos, and montages which modern First Amendment doctrine solidly recognizes as protected media of communication”).” (emphasis added)
The court’s memorandum decision in Fields defies logic, the DOJ position and the majority of other Circuits. We can only hope it is appealed and overturned
Being a rookie to the federal bench who was not confirmed until December 2014, Kearney probably had his nose immersed in commercial litigation law when the landmark Glik vs. Cunniffe (Boston police) was decided in the First Circuit Court of Appeals in 2011, which ruled that a citizen’s right to record was “clearly established” – even if they choose not to dance or insult the cops.
And that was followed in 2012 by the ACLU vs Alvarez decision in the Seventh Circuit Court of Appeals, which put a stop to police in Illinois arresting citizens on eavesdropping charges for recording them in public without their consent.
While Kearney is presiding in the Third Circuit Court of Appeals, most judges tend to look at other circuits for persuasive influence before making decisions in order not to look like complete buffoons in front of their peers.
Obviously, Kearney did not have that concern, so perhaps the ACLU will appeal his shortsighted decision and bring the case up to the Third Circuit Court of Appeals, which will likely side with the two other circuits.