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).