Block on Trump's Asylum Ban Upheld by Supreme Court
Video recordings of police activity and arrests have become a hot topic over the past few years. Between the ubiquity of cell phone cameras and new calls for police to wear body cameras, the issue of who can record video of the police (and when, where, and how) has been constantly debated. And most courts have found that citizens have a First Amendment right to record the police.
But most of those courts never addressed why citizens were recording police action. And in an odd decision last week, a federal judge ruled that the First Amendment right to record police only exists if the person is recording in order to challenge or criticize the police conduct and he or she asserts this at the time.
As noted above, this ruling is an outlier. Nearly every court to hear the issue has said that it is legal to videotape or otherwise record police, so long as you are not interfering with them. Both the First Circuit and the Seventh Circuit have found police recording legal, and the Supreme Court declined to overturn either ruling. (And The Washington Post's Radley Balko points out the Fourth, Ninth, and Eleventh circuits have also explicitly recognized "a First Amendment right to record on-duty law enforcement officers.")
But that didn't stop federal District Court Judge Mark Kearney from requiring more out of those who record police activity. Kearney asserts that only expressive conduct is protected by the First Amendment, and passive, unannounced recording "without any challenge or criticism" doesn't rise to that standard, and is therefore not protected speech.
The case involved Richard Fields, a Temple University student who took a cellphone photo of about 20 police officers standing outside a house party, and Amanda Geraci, a trained legal observer, who tried to record an arrest during a protest. Judge Kearney found that because neither told the police why they wanted to record them, neither was protected by the First Amendment:
"Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is 'sufficiently imbued with elements of communication' to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message."
This is an odd standard, given that the act of recording in and of itself could be considered expressive conduct, and that many police recordings are designed to monitor police action and possibly capture illegal police conduct, and announcing such an intention is likely to alter how police act.
Both Fields and Geraci are represented by the ACLU, so an appeal is likely. But for now, you might want to tell police, or someone else nearby, that you are recording and why. And if you've been arrested for recording the police or had photos or video of police seized or destroyed, you should contact an experienced criminal defense attorney near you.