The War on Cameras Just Went Code Red

Ruling in Fields v. City of Philadelphia says no 1st Amendment right to film cops unless you're challenging their behavior.

Hoo boy. Via the Twitter feed of Mike Hewlett comes news of a recent court ruling that should worry us all.

Fields vs. City of Philadephia concerns two people photographing and filming the police in public areas. Each had their cameras confiscated. From a Legal Intelligencer account of the action:

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.

Fields was taking pictures of cops outside a house party they were looking to bust. When he wouldn't leave or answer questions about what he was doing, he was arrested and cited for obstructing "public passages." Geraci was at an anti-fracking rally and about to film the police but was prevented from doing so. Both claimed in court that they were retaliated against for exercising or trying to exercise their First Amendment rights.

The court didn't agree. The good news? Most courts have upheld the right to photograph the po-po as long as they're in a public place. The decision is being appealed and will likely be overturned. At The Washington Post's Volokh Conspiracy blog, Eugene Volokh writes,

Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it's not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.

Your being able to spend money to express your views is protected even when you don't say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren't actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that takes place later). The same should be true of your recording events in public places.

Volokh predicts a reversal of ruling on appeal. Here's hoping.

Related: 2011 Reason TV video on "the war on cameras":