Over the years, the nation’s courts have moved towards recognizing First Amendment protections for citizens who film public servants carrying out public duties. Nearly every case has involved a citizen arrested for filming police officers, suggesting far too many law enforcement entities still feel their public actions deserve some sort of secrecy — even as these agencies deploy broader and more powerful surveillance tools aimed at the same public areas where no expectation of privacy (under the Fourth Amendment) exists.

A rather disturbing conclusion has been reached by a federal court in Pennsylvania. Two cases involving people who had their photography efforts interrupted by police officers have resulted in the court finding there is no First Amendment right to film public servants. (h/t Adam Steinbaugh)

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued his ruling in two consolidated cases filed against the city of Philadelphia by citizens whose cellphones were confiscated after they either photographed police activity or were barred from filming police activity.

Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.

“The citizens urge us to find, for the first time in this circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment,” Kearney said.

“While we instinctively understand the citizens’ argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on ‘observing and recording’ without expressive conduct and, consistent with the teachings of the Supreme Court and our court of appeals, decline to do so today.”

The court has not yet discussed whether the actions of police in response to the filming violated the plaintiffs’ Fourth Amendment rights, leaving that for a jury to determine. But what it does say about the First Amendment isn’t encouraging.

According to this decision, the photography must be “expressive” to receive First Amendment protection.

Fields’ and Geraci’s alleged “constitutionally protected conduct” consists of observing and photographing, or making a record of, police activity in a public forum. Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.

If taken on face value, this means informing cops that your recording is just a small part of a multimedia campaign highlighting the aggressive tactics of law enforcement or will be Twittered with #BTFSTTG or #BLM or whatever appended. The court apparently feels there’s no expressive value to simply recording public servants performing public duties — which would mean other efforts that routinely go unchallenged by the recorded, like city council meetings, etc., may now be shut down without worrying about First Amendment lawsuits.

Unfortunately, the Third Circuit Court of Appeals hasn’t exactly been helpful in protecting citizens against public servants who wish to operate in public without third party documentation. While other circuits have found that the First Amendment “protects the right to gather information about what public officials do on public property,” the Third Circuit has yet to challenge qualified immunity assertions claims made in cases involving citizens recording police officers.

One decision carefully weighing the state of the law and noting the competing public and private interests comes from the Third Circuit Court of Appeals in Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010). Kelly was a passenger in a truck stopped for a bumper height violation. When the officer saw Kelly videotaping the contact, he arrested Kelly for a wiretap law violation.

Those charges were later dropped.

Kelly sued.

The court granted qualified immunity to the officer with this instructive explanation:

We conclude there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment. Although Smith and Robinson announce a broad right to videotape police, other cases suggest a narrower right. [Other court decisions] imply that videotaping without an expressive purpose may not be protected, and in the Whiteland Woods case we denied a right to videotape a public meeting. Thus, the cases addressing the right of access to information and the right of free expression do not provide a clear rule regarding First Amendment rights to obtain information by videotaping under the circumstances presented here.

This decision will be appealed, but the path to protecting citizen photographers from public officials’ attempts to shut them down doesn’t appear to run through this Circuit. There’s a circuit split on the issue and it would take the Supreme Court to resolve it. As it stands right now, there are Fourth Amendment implications yet to be addressed which, if resolved in favor of the plaintiffs, would at least deter future bogus arrests. But without a finding that affords First Amendment protection to the unadorned act of filming public officials, police officers who abuse their power to shut down recordings will likely be willing to roll the dice on civil lawsuits.

And, as is noted by the earlier Third Circuit Appeals Court decision, no First Amendment protection covers the recording of other public officials in public areas. This lack of protection creates a chilling effect, forcing anyone who can’t articulate an expressive intent at the point in time where their act of recording is challenged to seek recourse through an unsympathetic court system. This is a depressing decision in light of the fact that other entities are seeking to have everything from automatic license plate readers to copyright trolling treated as protected expression.

Reporting on public activities of public officials has long been covered under the First Amendment. Gathering documentation is a large part of reporting, even if lots of collected footage is never used. The courts have given news gathering protection, even if there’s no clear expressive purpose at the point the footage is collected — or even after the fact, if the footage is discarded. The Third Circuit refuses to extend this blanket protection to citizens, even as the line between “citizen” and “journalist” has almost been completely erased.

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