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Circuit Court Upholds First Amendment Right to Record Police

A ruling on a pair of cases out of the Third Circuit Court of Appeals, in Philadelphia, Pennsylvania, affirmed a private individual's right to record police performing their duties in public. The cases of Amanda Geraci and Richard Fields both involve law enforcement officers retaliating against them for recording officers performing their duties in public.

While the federal district court handling these two cases found that neither Geraci, nor Fields, were protected by the First Amendment, the Third Circuit was quick to correct the lower court on their mistaken interpretation. Notably, the lower federal court was seemingly going rogue with their interpretation.

Free Expression and Free Press

The lower federal court based their decision on interpreting the First Amendment claims being brought as claims for the denial of free expression and recording not being an inherently expressive act. However, the appellate court explained that the plaintiffs were exercising their "First Amendment right of access to information." This right of access to information is essentially part of the freedom of the press, guaranteed by the First Amendment.

The Third Circuit went on to explain that private individuals have a right to record public officials, including law enforcement officers, while the officials are performing their public duties. The court explained its logic in painstaking detail (internal citations omitted):

The First Amendment protects the public's right of access to information about their officials' public activities. It "goes beyond protection of the press and the self expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues ...

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.

Civil Rights Cases Revived

Fields was recording police from across the street when he was arrested just for recording. Geraci was violently restrained by police when she attempted to take a picture of a protester being arrested. These underlying cases had their clear claims for violation of their First Amendment rights revived by this Third Circuit's decision. However, the cases still need to be litigated, and complex issues surrounding governmental immunity and proof, could sway the end result in either direction.

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