Apparently you do not have a First Amendment right to photograph the police in Pennsylvania. Unless you do a little jig.

This could be a significant blow to the First Amendment, as apparently videotaping the police is not protected speech in Pennsylvania. Unless, of course, you also decide to yell at them or do a jig at the same time.

I wish I were joking, but I’m not…

Two cases before the United States District Court, Eastern District of Pennsylvania, were recently consolidated into one for the purpose of determining “whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment.”

This is the trial court’s entire opinion, if you want to read the decision in its entirety.

The underlying facts are simple:

In the first case, Temple University student Richard Fields was standing on the sidewalk. There were 20 police officers standing outside a house party. Fields thought it was worth photographing for whatever reason. The police officer asked Fields to leave and stop taking pictures. Fields refused and continued to film. The police officer then took his phone and arrested him. Fields wasn’t taping the matter to protest the police or anything like that. He simply felt like recording it, maybe to put on Facebook, Instragram, or Philly Law Blog (holla!). The student did not claim to be protesting the police (or the house party for that matter), but merely recording the event.

In the second case, Amanda Geraci was at a protest. During the protest, the Philadelphia police arrested one of the protestors. Geraci moved closer to get a better view and hoped to videotape the incident. Geraci claims Officer Brown “attacked her” by physically restraining her against a pillar and preventing her from videotaping the arrest. Geraci claims that “I was just legal observing.”

Both sued the Philadelphia Police Department under 42 U.S.C. §1983 for First Amendment Retaliation.

In dismissing the First Amendment Retaliation claims on Summary Judgment, the court held that:

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.”

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

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.

Plaintiffs argued that “observing is a component of ‘criticizing’ and citizens may engage in speech critical of the government.” However, the court rejected this argument and held that “[w]e find no controlling authority compelling this broad a reading of First Amendment precedent.”

What does this all mean? 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.

You have to express yourself. (h/t to our friends over at Tattletot).

11 Responses to Apparently you do not have a First Amendment right to photograph the police in Pennsylvania. Unless you do a little jig.

  1. I’m with you.

    What about the Colten argument, though? Colten says there is no right to observe an arrest. Now, it’s really a short bit with almost no analysis. The meat of Colten is about the due process problem in the second part of the opinion—that’s why it’s cited thousands of times. No one looks at the First Amendment part…

    So you could gloss Colten to be a TPM–look, it was a stop at the side of a highway, an inherently dangerous situation, not here. You could say Colten was wrong, or that times have changed in the last 40-odd years. Or you could argue that it flat out says that observing an arrest is not protected conduct. If no right to observe, why a right to observe with a camera in hand?

    I think this particular opinion will get flipped, but there’s room to affirm. Or room for another circuit to go another way. They don’t nail it down here, but they’re getting close. Eventually, one of the monkeys typing away as city counsel will type the right words in the right circuit with the right judge….

  2. 1stA Fan says:

    Wouldn’t informing the police that you are a concerned citizen whose purpose in filming is to insure that proper procedures are followed be good enough for the courts? This is a bazaar ruling.

  3. Gerry Nance says:

    1A also cover “petition for redress of grievances and you need evidence to bring charges. Photography, video and audio are forms of evidence.

  4. Zee-L Usay says:

    “Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.”

    Horse apples. The Glick decision has CLEARLY stated you have the right to take pictures of anything you can see from anywhere you have a right to be. You have the right to gather information about what the cops are doing and the 4th & 5th amendment means you don’t have to “declare” your intentions to ANYONE. Add to that that they are now telling us we have to declare we are there to antagonize the cops before you can? Yeah….NO!

    Now if the the cops want to decide you DO have some expectation of privacy in public…. well then they have to play by that rule too now, don’t they.

    This go hand in hand with the fallacy of the “AG Gag” bill that claims you can’t take pictures of farms. The SCOTUS says otherwise. Common sense says otherwise. And if push comes to shove several million firearms say otherwise.

    The politicians need to be bitch slapped back into submission.

  5. matweller says:

    Why does it have to be speech when it’s legal to photograph or record anything else in a public space in PA for any reason whatsoever.

  6. This doesn’t make any kind of sense! Please tell me it gets overturned😦

  7. Nick says:

    Maybe you should hand them a dollar in case they want to run for elected office. That’s definitely speech.

  8. Janine says:

    If it’s of public interest it should be published

  9. This amendment will result in public’s negative opinion on our system.

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