FREEZE FRAME:Photographing Police Activity May Not Be Protected Under the First Amendment, According to Pennsylvania Federal Law

By Lisanne L. Mikula, Esquire
lmilula@dioriosereni.com

THE DECISION DISCUSSED IN THIS POSTING HAS BEEN REVERSED ON APPEAL

A federal court in Philadelphia recently held that a private citizen does not have a First Amendment right to photograph or film police officers-even in a public place while the officers perform their police duties-unless the person has or is making a criticism or challenge to police conduct.

Fields v. City of Philadelphia involved two situations where private citizens captured images of police officers in a public place performing their police duties. One plaintiff was a college student who, while walking home, saw approximately 20 police officers standing on the sidewalk of a house where a party was ongoing and because he thought it was an “interesting scene” and would make a “great picture,” he took photographs of the police on his smart phone. The other plaintiff attended a public protest-not as a protester but merely as a “legal observer”-and attempted to videotape police officers arresting one of the protesters.

The Fields court noted that the plaintiffs’ behavior would be protected “free speech” under the First Amendment only if it constituted “expressive conduct.” Certain non-verbal activity-for example, flag burning, arm-band wearing, and picketing-constitutes protected speech under the First Amendment because the nature of the activity, combined with the factual context and environment in which it occurs, evidences “communication.” Neither plaintiff in the Fields case, however, asserted anything to anyone before or while taking the images, and there was no evidence that the police officers understood either plaintiff as communicating anything.

The plaintiffs argued that “observing” and “recording” police activity, of itself, is expressive conduct entitled to First Amendment protection as a matter of law. While the Fields court recognized that observing and recording police officers performing their duties may constitute protected expressive conduct-such as where the person recording the police conduct has expressed criticism of the police-there was no similar element of communication present in the plaintiffs’ “observing” and “recording” the police officers in the case before it.

The Fields court acknowledged that courts in other jurisdictions across the United States have held that observing and photographing police activity, even without criticism of the government, constitutes protected speech under the First Amendment; however, since those courts’ decisions are not binding on a federal court in Pennsylvania, the Fields court did not have to follow those decisions.

The plaintiffs in Fields have vowed to appeal the court’s dismissal of their First Amendment claims. Given the prevalence of mobile phones, heightened media attention regarding police conduct, and the disagreement among the nation’s courts as to when a private citizen’s “observing” and “recording” police conduct constitutes protected speech under the First Amendment, this is an evolving area of law which will likely be considered by the United States Supreme Court in the near future.

If you need help, contact the attorneys at The Law Firm of DiOrio & Sereni, LLP. Contact Lisanne L. Mikula, Esquire at 610-565-5700, or send an e-mail at lmikula@dioriosereni.com

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The Law Firm of DiOrio & Sereni, LLP, is located in Media, PA and serves clients in and around Media, Glen Riddle Lima, Brookhaven, Wallingford, Newtown Square, Lenni, Springfield, Swarthmore, Chester, Aston, Bryn Mawr, Morton, Woodlyn, Broomall, Gradyville, Folsom, Chester Heights, Crum Lynne, Glen Mills, Marcus Hook, Ridley Park, Drexel Hill, Marple, Bethel, Garnet Valley, Chadds Ford Concord, Chester County, Delaware County, Montgomery County, Philadelphia County.


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