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Advocates Fire Back After Judge Rules Filming Police Isn't A First Amendment Right

The Huffington Post The Huffington Post 1/03/2016 Andy Campbell
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Free speech advocates say a federal judge's recent ruling on the right to film police officers on the street won't set any legal precedent, but they still call it way out of line.

Last month, U.S. District Judge Mark Kearney ruled that citizens are not protected by the constitution when they film police officers -- unless they're doing it for the purpose of criticizing police activity.

In the decision, Kearny concluded:

We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this [Third Circuit] finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government ... We decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions.

The ruling stems from a lawsuit from two Philadelphia residents, Richard Fields and Amanda Geraci, who claim that their constitutional rights were violated when police took their cameras away as they recorded officers in action.

Because the pair didn't identify a purpose for recording the officers beyond the fact that "it was an interesting scene," Kearney writes, "we find no basis to craft a new First Amendment right based solely on 'observing and recording.'" 

Mary Catherine Roper, an attorney with the ACLU of Pennsylvania who represents Fields and Geraci, told The Huffington Post on Tuesday that Kearney's decision is contrary to Philadelphia's own policy of allowing citizens to record officers in public no matter what the situation. 

"The reason we have these types of lawsuits in the first place is because police violate that policy," Roper said. "The most important point of the First Amendment is to ensure that we can criticize our government."

That power hasn't been taken away by Kearney's decision, which does not set a legal precedent or overrule any higher federal court ruling -- and also does not find that filming police is illegal. 

However, it does differ from previous decisions in higher courts that consider recordings of police officers to be protected under the First Amendment. UCLA free speech professor Eugene Volokh made this point when he condemned Kearney's decision in The Washington Post last week.

"Some restrictions on such recording may be constitutional, but simply prohibiting the recording because the person is recording the police can’t be constitutional," Volokh wrote. "This is the view of all the precedential federal appellate decisions that have considered the issue."

Paul Hetznecker, a civil rights attorney who represented a photojournalist arrested for filming officers at a protest, told The Philadelphia Inquirer that he was "surprised" by Kearney's findings.

"Gathering information for dissemination is a fundamental part of what we do under the First Amendment, and videotaping a police officer conducting their duties in a public space is a fundamental example of gathering information,” he said, adding that other federal judges in Philly have classified recording as a First Amendment right.

Roper called Kearney's decision an "outlier" that will "certainly" be overturned when it hits the appellate courts. Indeed, the 1st U.S. Circuit Court of Appeals already reaffirmed that such recordings are protected in several decisions:

[Previously], we held that the Constitution protects the right of individuals to videotape police officers performing their duties...

Protecting that right of information gathering not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally. Those First Amendment principles apply equally to the filming of a traffic stop and the filming of an arrest in a public park.

The ruling could become dangerous, however, if it influences future decisions. But Roper says the rest of the country -- including higher courts, the Department of Justice and your average citizen -- finds filming public police events to be an act of free speech.

"You do not need to change what you do on the street," she said. "What you find is that sometimes the court system lags behind reality ... What we need going forward is very clear guiding authority from the Court of Appeals."

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