In a bizarre ruling issued last week, federal District Court Judge Mark Kearney ruled that the First Amendment rights of two people were not violated when they were apprehended for attempting to photograph or record police officers. As far as I know, this is the first time a federal court has notfound that recording cops while on duty and in a public setting is protected by the First Amendment. Two federal appeals courts, at least two state supreme courts and a few other federal circuit court judges have all determined otherwise. Some of those decisions found that the right hasn’t been clearly established long enough for those wrongly arrested to overcome the qualified immunity afforded to police officers, but they did find that the right to record exists. Kearney in this decision rules that no such right exists.
This was a case of first impression for the U.S. Court of Appeals for the 3rd Circuit, so Kearney wasn’t bound by rulings from state courts or other federal circuits. But he still notes them in his opinion. The 3rd Circuit has found that recording police may be protected by the First Amendment.
Kearney’s opinion goes off the rails when he tries to distinguish these cases from those other rulings. First, in citing other 3rd Circuit cases in which courts did find a right to record the police, he writes: