Free Speech

First Amendment Right to Record Child-Protection Visit to Your Home

|The Volokh Conspiracy |

From yesterday's Pennsylvania appellate decision in In re Y.W.-B., by Judge Carolyn Nichols, joined by Judges Mary Murray and James Gardner Colins:

Mother and Father are the parents of Y.W.-B., born in June 2012, and N.W.-B., born in January 2015 (collectively, Children). On May 31, 2019, DHS filed the instant petitions to compel Mother's cooperation with a home visit.

In its petitions, DHS [Department of Human Services] alleged, in part, that on May 22, 2019, it received a … report … that three weeks earlier, the family slept outside a Philadelphia Housing Authority (PHA) office, and that on May 21, 2019, Mother was outside the PHA office from 12:00 p.m. to 8:00 p.m. with a child. The petitions further stated that Mother told a Project Home outreach worker that she was not homeless, but that her previous residence was burned down. According to the petition, it was "unknown if [Mother] was feeding [Children while] she stood outside of the PHA office for extended periods of time." According to the petitions to compel, DHS workers attempted to assess the family's home on the same day it received the GPS report, but Mother and Father refused them entry to the home or access to Children.

The appellate court held that "DHS presented the trial court with probable cause to search Mother's home in support of its petitions to compel cooperation," but vacated a trial court order that "Mother is NOT to record or video" the visit. The court quoted Fields v. City of Philadephia (3d Cir. 2017), which had said:

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, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection. That information is the wellspring of our debates; if the latter are to be uninhibited, robust, and wideopen, the more credible the information the more credible are the debates.

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.

The court went on to note, relying on Commonwealth v. Bradley (Pa. Super. Ct. May 5, 2020):

"The Third Circuit [in Fields], however, cautioned that all recording was not protected or desirable. 'The right to record police is not absolute. It is subject to reasonable time, place, and manner restrictions.'… The court, however, did not address the constitutional limits of this important First Amendment right because the defendants offered no justification for the action. Accordingly, the court noted that no 'countervailing concerns' existed to justify a departure from the general right to free speech under the First Amendment."

In Bradley, this Court addressed such "countervailing concerns" in a case in which the defendant challenged his conviction for defiant trespass for recording in the lobby of a police station in which there was a "no-filming" policy in place. The Bradley Court specifically concluded that the no-filming condition in the lobby passed constitutional muster, reasoning:

"The Commonwealth presents several countervailing concerns to [the a]ppellant's argument that he had an absolute right under the First Amendment to videotape in the Lobby. Principally, the Commonwealth highlights Corporal McGee's testimony that the police department's no-filming condition in the Lobby was based on several reasons: (1) preventing the disclosure of confidential information relating to ongoing investigations discussed within secure areas of the police department; (2) safeguarding the identity of confidential informants and undercover officers; (3) ensuring their safety by preventing the risk of retaliation against them; and (4) ensuring and preserving the privacy of crime victims. Indeed, the trial court found 'Corporal [ ] McGee testified with regard to numerous grounds upon which the no[-]filming policy was based, citing confidentiality and victim safety as fundamental components.' Thus, the restriction or condition at issue is reasonable.

"The no-filming condition applies to all members of the public who visit the Lobby. In other words, members of the public are granted a license to enter and remain in the Lobby, provided that they abide by the condition. Among other things, the no-filming condition ensures the integrity of police investigations and activity. The condition applies only to the Lobby and the interior of the police station, and not to areas outside of the police station, such as steps or entrances. Admittedly, it prohibits only the recording, taping, and photographing within the Lobby. The condition does not bar the use of parchment and quill in the Lobby. It, therefore, is a reasonable restriction under the First Amendment because it is narrowly tailored to serve a significant governmental interest, i.e., to ensure the safety, security and privacy of officers, informants and victims. Moreover, it prevents interferences with police activity. Accordingly, under the circumstances of this case, the recording or filming in the Lobby by members of the public is not a protected activity under the First Amendment." …

Fields recognized that "[a]ccess to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, the highest rung of the hierarchy of the First Amendment values, and is entitled to special protection." Although this case involves DHS officials rather than police, and official actions within Mother's home rather than in public, we conclude that First Amendment protections extend to restrictions on "the stock of information from which members of the public may draw" when discussing public issues. Therefore, we conclude that Mother's claim that the trial court improperly curtailed her right to record the DHS officials conducting a home visit is subject to intermediate scrutiny.

In the instant case, there was no evidence of any countervailing interests to support DHS's request for a no-recording provision. See [Transcript] (indicating that the trial court denied DHS's request to recall Ms. Richardson and granted DHS's request for a no-recording provision based on DHS's counsel's assertion that there were "videos, photography taken, posted on social media … that made her feel intimidated")….

[W]e acknowledge the trial court's concerns regarding the privacy interests of Children. However, our review is necessarily limited to the issue raised in this appeal, specifically, the right to record, under the First Amendment, DHS employees conducting an assessment of a home, and not Mother's posting of such videos on social media. {We add that there were no indications that Mother took videos containing images of Children or DHS employees interacting with the Children during her previous interactions with DHS.}

Therefore, under the specific circumstances of this case, and in light of Mother's and DHS's arguments, we conclude that DHS failed to establish that its request for a no-recording provision was reasonable. We emphasize that our holding does not make the right to record absolute, consistent with established case law, it is subject to reasonable time, place, and manner restrictions….

NEXT: Couple Barred from Fostering Their 1-Year-Old Great-Granddaughter Because of They Oppose Homosexuality and Gender Transitioning

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  1. I can’t find it right now, but one such scene has been caught on film.
    “A Thousand Clowns”, 1965. Jason Robards’s 12 year old son (Barry Gordon) is being visited by the social worker (William Daniels), while his father’s blinking naked lady statuette is on the table, distracting Daniels but not Gordon. Seeing his discomfort, the son assures the social worker, “The boobs light up much better plugged in than with batteries, don’t you think?”

    Or . . . from my real life as a social worker . . . I could tell you stories than would send the all male readership here to the bathroom, if you know what I mean . . . My point is, child protective workers will often see what they want to see. In most states, they can be sued for being too accommodating, but not for being too aggressive . . . I hope I’m being clear here.

    1. Who is going to sue child protective workers for being too accommodating?

      1. The non custodial parent.

        1. And in the vast majority of cases where there is no non-custodial parent?

          1. It happens frequently enough to keep social workers and the courts busy.

    2. I hope I’m being clear here.

      You are not.

  2. I’m struggling to wrap my head around Bradley. Okay, for photographs and videos, I guess I can understand why that can be barred . . . id of undercover cops, maybe overly intrusive of crime victims. (If my sister, wife, friend etc had just been raped, I am sure I would not want John Q Public photographing her, as she made a complaint to the cops.) Fine.

    But I am not understanding at all the ban on audio recordings, esp since no one was arguing that one could not take notes with pen and paper. I’m trying to come up with some fact pattern that would support a ban on audio recordings. Maybe something like a desk sergeant saying to an undercover cop, loudly, in the lobby, “Hey, Detective Mike Smith. How’s your undercover assignment going at Billy’s Bar? Still using the street name, James Tsongis? With a silent “T”? ” I mean, if that’s actually something that happens in police station lobbies, then cops have bigger problems than I imagined.

    Can someone help me understand? Why yes to civilians/reporters taking copious notes in the lobby, but no to audio recordings?

    1. Audio recordings can be made much more lazily and capture everything, and amplified later. In a bank you’d have to be pretty close to overhear account numbers most of the time to write them down by hand.

      In any case, the public’s interest “in recording police duties in public” seems not to be so much about in public as performing duties. If you do that in someone’s home, you are just as subject to recording by the home owner. Even the ban in the station lobby was only justified for other reasons, like recording sensitive information, or identities of possible informants, and not to make sure cops aren’t screwing up.

      It reminds me of that bizarre case where the conclusion was “the lawyer-client privilege is about protecting the client, not the lawyer.”

  3. Wait, what?
    Did a court just rule that the press and private citizens have equal rights?
    The “press” is NOT a privileged class?
    Just because a rioter puts “press” on a post-it and wears it they can still be arrested?

    Welcome to the revolution.

    1. Maybe don’t defend the many cases of journalists getting abused by cops or arrested for no reasons by calling them ‘rioters.’

      1. My sense is he was referring to the converse, e.g. the videos of people with ‘Press’ lettered on their helmet using angle grinders to cut through the fencing around the Portland Fed Bldg, or the similarly attired ones helping to ‘unarrest’ someone (that’s the euphemism for the crowd assaulting police officers when they are trying to arrest someone).

      2. “Maybe don’t defend the many cases of journalists getting abused by cops or arrested for no reasons by calling them ‘rioters.’”

        ?? This is a terrible misreading of the comment.

  4. How does this line up with all that one party consent, two party consent thing ?

    1. Interesting question. My guess is it would depend on which two party state you’re in and where expectation of privacy exists. Since PA is a two party state, which is functionally all party should there be more than two, it would then come down to whether a government worker would have an expectation of privacy while conducting government business in your home. I would say that a government worker would not have any right to control your home, particularly the control of any and all security systems that may or may not exist, then they would have no expectation of privacy given that it almost always an adversarial encounter.

      I would expect a guest who was invited in for a conversation over a shared cup of coffee, for instance, would have an expectation of privacy since the conversation was deliberately taken out of public view and in private. Thus all parties would have to consent to recordings. All of that said, I’m a physicist and neither lawyer, judge, nor court clerk and this is not advice but mere guesswork.

      1. “How does this line up with all that one party consent, two party consent thing ?”

        If the recording is protected by the first amendment, then none of that should matter.

    2. Shouldn’t matter. They are agents of the state acting in their official capacity. They “consented” when they took the job to interact with the public. If they don’t want to be recorded at their jobs, find another job.

  5. Interesting that the DHS could even require someone they are visiting not not record activities in their own home, under any theory of state police power. Especially where the visit is about potentially removing a child from their parents. To me, that is the craziest part of all of this.

  6. What are the other rungs on the “hierarchy of First Amendment values” to which the Fields decision refers, and how widely are they accepted among jurists? Do any originalists accept them, and if so, on what basis?

  7. “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.”

    Hey judges, what do you think about not deleting videos of court proceedings from Youtube? “Um, recordings are TERRIBLE, we don’t want anybody questioning the official record/transcript of what occurred, and people might do bad things with recordings.”

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