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Early last year, a federal court judge decided filming police officers was not protected by the First Amendment. How the court arrived at this conclusion was by narrowly defining the First Amendment as only protecting "expressive" speech. Simply documenting activity was somehow not covered by the First Amendment, according to the government's theory (the city of Philadelphia, in this case).

According to the district court, expression is key. It was the wrong conclusion to reach, but it helped some Philadelphia police officers escape being held accountable for retaliatory arrests of citizen photographers. Even worse, it created a chilling effect for citizen photographers in the court's jurisdiction, giving them a publish or die be arrested mandate.

At that time, it seemed unlikely the Third Circuit Appeals Court would overturn its own precedential rulings. The Appeals Court had never gone so far as to establish a First Amendment right to record public officials. In fact, precedent had mostly sided with law enforcement officers who had been sued for shutting down recordings. An affirmation on appeal would have resulted in a circuit split that could only be resolved if and when the Supreme Court chose to take up a case directly related to this issue.

Fortunately, the Third Circuit Court has reversed the lower court's finding, at least in terms of the First Amendment. This adds to the list of circuits already viewing recordings of cops as protected speech. The issue appears to be (slowly) resolving itself without the Supreme Court's assistance.

The ruling [PDF] is a fantastic read, at least as far as its handling of the First Amendment goes. The opening makes it clear the lower court screwed this up badly. [h/t Brad Heath]

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Departments official policies recognized that [p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties. No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conductthe act of recordingwas not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

This establishes citizen photography as protected speech, no matter what the photographer's intent is. The protection here has very little to do with expression, no matter how much the defendants wish it was. Instead, it has everything to do with access.

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

[...]

In sum, under the First Amendments right of access to information the public has the commensurate right to recordphotograph, film, or audio recordpolice officers conducting official police activity in public areas.

In the Third Circuit, cops can no longer expect to shielded from lawsuits related to shutting down citizens' recording efforts.

As was noted by the court, the right likely should have been established at the time the incident took place (2014).

In 2011 the Department published a memorandum advising officers not to interfere with a private citizens recording of police activity because it was protected by the First Amendment. In 2012 it published an official directive reiterating that this right existed. Both the memorandum and directive were read to police officers during roll call for three straight days. And in 2014, after the events in our case and the occurrence of other similar incidents, the Department instituted a formal training program to ensure that officers ceased retaliating against bystanders who recorded their activities.

Unfortunately, the court still sides with the officers, stating that precedent from various circuits did not divorce the act of recording entirely from the concept of "expression." At the point the arrests occurred, it may have seemed reasonable to shut down citizens who attempted to record police if they couldn't clearly state an "expressive" reason for doing so. And that's apparently ok even if the officers had received repeated instructions from their supervisors about respecting the public's right to record.

The dissent disagrees with this conclusion. It wasn't just court precedent and the PD's own directives. Officers also should have been aware of the DOJ's directive along the same lines, which was handed down in 2012 to all local law enforcement agencies urging them to respect the public's "right to record."

With all of this, it is indisputable that all officers in the Philadelphia Police Department were put on actual notice that they were required to uphold the First Amendment right to make recordings of police activity. From a practical perspective, the police officers had no ground to claim ambiguity about the boundaries of the citizens constitutional right here.

Even absent this wealth of directives, any officer should have "reasonably" known retaliating against citizens for recording in public was the wrong way to handle this.

A reasonable police officer would have understood, first-hand, the significance of this proliferation of personal electronic devices that have integrated image capture into our daily lives, making it a routine aspect of the way in which people record and communicate events. Apart from any court ruling or official directive, the officers own lived experience with personal electronic devices (both from the perspective of being the one who is recording and one who is being recorded) makes it unreasonable to assume that the police officers were oblivious to the First Amendment implications of any attempt by them to curtail such recordings.

The upshot is the judicial enshrinement of the right to record police. The downside for the plaintiffs is the officers can't be sued for violating what should have been considered a clearly established right, even before the Appeals Court decision.

The way things are going, the Supreme Court may never have to address the issue. As the presiding judges note (both in the opinion and during oral arguments), the establishment of this right across the nation is inevitable. As more circuits address the issue head-on, the rulings should result in further First Amendment wins.

As a side note, the oral arguments are an amazing watch. The government's lawyer desperately wants the discussion to center on questions of immunity, but the court is far more interested in how he intends to argue speech must be tied to expressive intent to receive First Amendment protections. The fun starts about 19:45 into the recording. By the time a judge brings up the Zapruder recording ten minutes later, you almost feel sorry for the government's legal rep.

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Third Circuit Appeals Court Establishes First Amendment Right To Record Police - Techdirt

A panel of lawyers said the case between Hulk Hogan and Gawker was a debate between First Amendment rights and privacy rights, but TheWraps Editor-in-Chief Sharon Waxman disagreed.

In a society where we have the rich getting richer and the media fragmented and difficult to sustain as it is, this is the kind of thing that could happen all the time, Waxman said in a panel discussion Thursday. It doesnt sound like speech. It sounds like something rich people get to do.

Waxman spoke on TheWraps panel The First Amendment in The Age of Trump following a screening of the new documentary Nobody Speak: Trials of the Free Press.It charts how Gawkers decision to publish Hulk Hogans sex tape led to a trial that has potentially opened the flood gates for billionaires to make news outlets they dont like disappear.

Also Read: Is Freedom of Expression in Danger in Trump Era? First Amendment Experts Weigh In (Video)

Waxman shared an instance when she and TheWrap were sued by a millionaire heiress whose pride was hurt when she didnt like the story that ran about her.

We had to suffer this lawsuit going through the courts for two years, a million dollars was spent, it wouldve put us out of business at that time, and the case died one day when the woman failed to show up in court, and the judge threw it out, Waxman said.

Thankfully TheWrap was covered by insurance, but Waxman pointed to Sheldon Adelson privately purchasing the Las Vegas Review-Journal and John Olivers recent report on Sinclair Media Group as examples of how anyone could use their wealth to influence the media.

See Nobody Speak: Trials of a Free Press's latest POWER MOVE.

Anybody can decide that they dont like something that was written about them, and theyre going to be encouraged by Trump, Waxman said. These are all really concerning.

Waxman added that the right to privacy is still a serious matter, but shes less sure about the specifics of the Hulk Hogan case as depicted in Nobody Speak.

The idea that Hulk Hogan and Terry Bollea have two different penises is something very difficult for me to get my brain around, Waxman said.

Watch the video of Waxmans comments above, and check out the complete video and recap here.

See more here:
First Amendment Under Attack? TheWrap's Sharon Waxman Weighs in With Panel of Experts (Video) - TheWrap

Common practice for liberals and conservatives now is to take turns calling each other enemies of the First Amendment. The results of this year's "State of the First Amendment" survey gave us the opportunity to consider these insults and after the numbers are crunched, who is the real enemy of the First Amendment?

Well, no one. And, everyone.

Most of our fellow citizens, regardless of their political ideology, are quite fond of the First Amendment, at least in the abstract. The people who think that the First Amendment goes too far are a minority 22.5 percent of us. A majority of Americans (67.7 percent) thinks that the press plays an important role as a watchdog on government; a slightly narrower majority (58.8 percent) thinks that freedom of religion should extend to all religious groups, even those widely considered extreme or fringe.

That's the good news: Even in a time of great political turmoil, we're generally supportive of the First Amendment's protections.

The bad news: When it comes down to specific applications of the First Amendment, we're less positive, and also deeply divided along ideological lines. Both liberals and conservatives have certain pain points where they balk at the amount of protection that the First Amendment provides.

Liberals are more likely than conservatives to think:

Colleges should be able to ban speakers with controversial views.

People should not be able to express racist comments on social media.

Meanwhile, conservatives are more likely than liberals to think:

Government officials who leak information to the press should be prosecuted.

Journalists should not be able to publish information obtained illegally, even if it serves the public interest.

Government should be able to determine which media outlets can attend briefings.

Government should be able to hold Muslims to a higher standard of scrutiny.

Worth noting: Some of these differences in attitude may not be a direct result of whether you're a liberal or a conservative; instead, they might be circumstantial. Do more liberals support press freedoms because that's a core value of liberal ideology or because the press is a watchdog on the government, which liberals don't currently control?

Do more conservatives think that colleges shouldn't be able to ban speakers because of a greater commitment to free speech or because most banned speakers, at least in recent years, have tended to be conservative? It will be interesting to see in subsequent years if attitudes change as circumstances change.

One thing that unites the majority of Americans right now: Most of us, liberals and conservatives, prefer to read or listen to news that aligns with our own views.

That's true even if you think that the news media reports with a bias, as most Americans do (56.8 percent). Apparently, we're not inclined to correct that bias by taking in multiple and varied news sources. Instead, we're more likely to double down on the news that fits in with our pre-existing ideological perspectives.

This finding is both obvious and disheartening: Everyone likes reading and hearing news that confirms what they already believed. That's one of the factors that keep us so divided.

Lata Nott

Executive director

First Amendment Center

Newseum Institute.

Washington, D.C.

See the rest here:
Our love-hate relationship with the First Amendment - Progress Index

[JURIST] The US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] Friday that citizens have a First Amendment right to record police performing their duties. The court found that officers, "are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions." The court was clear that this case was based on a First Amendment right to access of information about how public servants operate in the public realm. This decision follows the rulings by the First, Fifth, Seventh, Ninth, and Eleventh Circuits. Even with the ruling in favor of the First Amendment argument, two of the three judges ruled that the officers were entitled to qualified immunity, effectively shielding them from liability over the incidents.

Trust between communities throughout the US and police officials continues to be an issue, particularly after a series of incidents have led to demand for higher accountability from the public servants. The interactions have created dialogues in communities in an attempt to create a greater trust between members of the public and law enforcement. In April the Department of Justice raised doubts [JURIST report] about a police reform agreement reached in the city of Baltimore. In June rights group decided that they wanted police reform and through a lawsuit [JURIST report] attempted to bring about the change and accountability over the Chicago police enforcement practices.

Continued here:
JURIST - Federal appeals court upholds First Amendment right to ... - JURIST

The First Amendment protects our right to use electronic devices to record on-duty police officers, according to a new ruling by the U.S. Court of Appeals for the Third Circuit in Fields v. Philadelphia. This right extends to anyone with a recording device, journalists and members of the public alike. And this right includes capture of photos, videos, and audio recordings.

EFF filed an amicus brief seeking this ruling. We argued that people routinely use their electronic devices to record and share images and audio, and that this often includes newsworthy recordings of on-duty police officers interacting with members of the public.

The Third Circuit began its Fields opinion by framing the right to record in history and policy:

In 1991 George Holliday recorded video of the Los Angeles Police Department officers beating Rodney King and submitted it to the local news. Filming police on the job was rare then but common now. With advances in technology and the widespread ownership of smartphones, civilian recording of police officers is ubiquitous. . . . These recordings have both exposed police misconduct and exonerated officers from errant charges.

The Third Circuit recognized that all five federal appellate courts that previously addressed this issue held that the First Amendment protects the right to record the police.

The court next reasoned that the right to publish recordings depends on the predicate right to make recordings. Specifically:

The First Amendment protects actual photos, videos, and recordings, . . . and for this protection to have meaning the Amendment must also protect the act of creating that material. There is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them.

The court also reasoned that the right to record the police is grounded in the First Amendment right of access to information about their officials public activities. The court explained:

Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.

The court identified the many ways that civilian recordings of police activity are beneficial by capturing critical information:

Importantly, the court concluded that recordings of on-duty police have contributed greatly to our national discussion of proper policing. Among other things, they have improved professional reporting, as video content generated by witnesses and bystanders has become a common component of news programming. As a result, recordings have spurred action at all levels of government to address police misconduct and to protect civil rights.

Qualified Immunity

The Third Circuit erred on the issue of qualified immunity. This is a legal doctrine that protects government employees from paying money damages for violating the Constitution, if the specific right at issue was not clearly established at the time they violated it. In Fields, the Third Circuit unanimously held that going forward, the First Amendment protects the right to record the police. But the majority held that this right was not clearly established at the time the police officers in the case violated this right.

Judge Nygaard dissented on this point. He persuasively argued that this right was in fact clearly established, given the prior rulings of other appellate courts, the City of Philadelphias own policies, and the frequency that people (including police officers themselves) use their mobile devices to make recordings. On the bright side, the Third Circuit remanded the question of municipal liability, so there is still a possibility that the injured parties, whose right to record was disrupted by police, can obtain damages from the city.

Location of Recording

The Third Circuit in Fields sometimes formulated the First Amendment right to record police as existing in public places. This is true. But the right also exists in private places. For example, a home owner might record police officers searching their home without a warrant. Also, a complainant about police misconduct, speaking to internal affairs officers inside a police station, might record those officers discouraging her from pressing charges. In such cases, there is a First Amendment right to record on-duty police officers in a private place.

Rather than ask whether the place of recording was public or private, courts should ask whether the subject of recording had a reasonable expectation of privacy. Critically, on-duty police have no such expectation while speaking with civilians, whether they are in a public or private place.

The Fields decision is not to the contrary. Rather, it simply addressed the facts in that case, which concerned civilians recording on-duty police officers who happened to be in public places. Also, the Fields opinion at another point correctly framed the issue as recording police officers performing their official duties.

Interference

The court discussed another possible limitation on the right to record the policewhether recording may be subject to reasonable time, place, and manner restrictions to ensure that it doesnt interfere with policy activity. However, this issue was not before the court. It remains to be seen how future courts will address limitations on the First Amendment right to record the police.

The Third Circuits Fields decision is an important victory for the right of technology users to record on-duty police officers. But the struggle continues. Across the country, many government officials continue to block members of the public from using their electronic devices to record newsworthy events. EFF will continue to fight for this vital right.

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Third Circuit Declares First Amendment Right to Record Police - EFF