Freeze Frame (Take 2)—Photographing Police Activity Constitutes Protected Speech under the First Amendment

By: Lisanne L Mikula, Esquire

Back in March 2016, I discussed a decision by a federal trial court in Philadelphia which held that a private citizen bystander does not have a First Amendment right to photograph or film police officers while those officers are engaged in law enforcement activities.    That decision was appealed to the United States Court of Appeals for the Third Circuit, which recently reversed the trial court’s ruling, ruling instead held that a citizen bystander’s recording activity is protected by the First Amendment.

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 trial court ruled that the plaintiffs’ behavior was not protected free speech under the First Amendment because it did not amount to “expressive conduct”  in the way that certain non-verbal activity – for example, flag burning, arm-band wearing, and picketing – evidences the “communication” of information or an opinion.  The Third Circuit, however, disagreed with the way the case was framed by the trial court, holding that the case was not about whether the plaintiffs expressed themselves through their conduct, but, rather, “whether they have a First Amendment right of access to information about how our public servants operate in public.”

The Third Circuit observed the ubiquity of electronic recording devices-such as smartphones-that enable bystanders to record the activities of police officials in the performance of their official duties. The court emphasized the important role which bystander video plays in “citizen discourse on public issues” – a discourse which is afforded great protection under the First Amendment.

The Third Circuit reasoned that in order for the First Amendment’s protection of actual photos, videos, and recordings to have meaning, the First Amendment must also protect the act of creating that material.  The court noted that bystander video can provide a different record of events than police “dash cams” or body cameras and hence bystander recordings may provide objective facts which either corroborate or counter subjective impressions of official police activity.  The First Amendment undoubtedly protects the press’ right to record official police activity, and there is no reason to deny members of the public of the same First Amendment protection.

Disagreeing with the trial court, the Third Circuit held that the fact that neither plaintiff in Fields intended-at the time of recording-to disseminate their recordings to the public did not diminish the plaintiffs’ First Amendment right to access the information and make a photographic or video record of the police officers’ activities.  Because the value of recordings may not be immediately obvious at or prior to those recordings being made, the court held that the plaintiffs’ intention while recording the police officers’ acts was irrelevant.  In fact, by preventing the plaintiffs from making their recordings, the plaintiffs were deprived of the opportunity to later review those recordings to determine their value.

Even though the Third Circuit concluded that the plaintiffs’ conduct was protected under the First Amendment, the court nonetheless held that the police officers were shielded from liability for any violation of plaintiffs’ First Amendment rights under the doctrine of qualified immunity.  Government actors, such as police officers, are entitled to qualified immunity unless those government actors violate a constitutional right which is so clearly established that every reasonable official would have understood that what the official is doing violates that right.

In this case, at the time the police officers stopped plaintiffs from making their recordings, neither existing case law nor the police department’s internal guidelines were sufficiently clear to alert the police officers that the plaintiffs had a First Amendment right to record the police officers’ activities.  As such, the plaintiffs’ First Amendment claims against the police officers could be dismissed under the doctrine of qualified immunity.

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 [email protected]

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