First Amendment generally protects videorecording of police, and this right is 'clearly established'

So holds Higginbotham v. City of New York (S.D.N.Y. May 12, 2015); the "clearly established" conclusion is important, because it allows the plaintiff to collect damages from the defendants, assuming his account of the facts is accepted at trial. The court also discusses the existing precedents in a good deal of detail, and its analysis generally sounds accurate to me.

The following facts are taken from the complaint, and are accepted as true for the purposes of this motion. On the morning of November 15, 2011, Higginbotham was working as a freelance video-journalist for TV New Zealand, covering an Occupy Wall Street protest in lower Manhattan. To get a better vantage point, he climbed onto the top of a telephone booth.

While he was filming "an arrest that resulted in a significant injury to the person being arrested," he was ordered to climb down from the telephone booth by the defendant police captain, but could not immediately comply because there were too many people surrounding the booth. Eventually, he began to climb down, and when he did so, the three individual [police officer] defendants pulled his legs out from under him, causing him to drop his camera and fall onto the ground.

He was placed in plastic handcuffs and transported to a police processing center, where officers had to use a bread knife to cut off the handcuffs. In total, he spent approximately three hours in handcuffs, which caused bruising and pain to his wrists. After approximately four hours in custody, Sylvester issued Higginbotham a summons to appear in court, and released him. Higginbotham was charged with one count of disorderly conduct, but the charge was dismissed on February 17, 2012.

Higginbotham claims that the defendants retaliated against him for filming a violent arrest, in violation of his First Amendment rights….

At oral argument, counsel for the defendants asserted for the first time that Higginbotham's videotaping of the arrest was not protected by the First Amendment because it was not "expressive conduct." In supplementary briefing requested by the Court, the defendants rely on Pluma v. City of New York, No. 13 Civ.2017(LAP), 2015 WL 1623828 (S.D.N.Y. Mar. 31, 2015), in which the court dismissed the First Amendment claim of a "citizen journalist" who was pepper-sprayed while filming police activity in Zuccotti Park.

The court stated that "[t]he only potentially expressive actions that Plaintiff took leading up to his injury … involved filming" the police activity, but went on to note that "neither the Supreme Court nor the Second Circuit has addressed the right to photograph and record the police." The court concluded: "It consequently remains unclear whether Plaintiff's filming was protected by the First Amendment." But it further held that, even assuming a First Amendment interest, the complaint had not alleged a causal connection between the plaintiff's activity and the pepper-spraying.

Pluma appears to rely on a line of cases suggesting that recreational photography or filming for personal use is not protected by the First Amendment, because it lacks an "identifiable message sought to be communicated, [and] an identified audience to whom a message [is] being broadcast." Montefusco v. Nassau Cnty., 39 F. Supp. 2d 231, 242 n. 7 (E.D.N.Y.1999) (suggesting, but not holding, a schoolteacher's photography of female teenagers was not protected by the First Amendment); see also Porat v. Lincoln Towers Community Ass'n, No. 04 Civ. 3199(LAP), 2005 WL 646093, at *4-5 (S.D.N.Y. Mar. 21, 2005) (holding that a photo hobbyist's recreational photography of residential buildings was not protected). Whatever the merits of that legal proposition, it does not apply to a journalist who was filming a newsworthy protest for broadcast by a news organization. See Porat, 2005 WL 646093, at *5 (contrasting the plaintiff's case with "the classic First Amendment example of a reporter attempting to take a photograph for publication with a specific story").

Pluma may be distinguishable on the basis that the plaintiff in that case, although he called himself a "citizen journalist," did not allege that he ever intended to disseminate his videos: the complaint merely alleged that he went to Zuccotti Park "with hopeful reflection upon the efforts of Occupy Wall Street." To the extent Pluma is not distinguishable, however, the Court declines to follow it. While videotaping an event is not itself expressive activity, it is an essential step towards an expressive activity, at least when performed by a professional journalist who intends, at the time of recording, to disseminate the product of his work. See generally Seth F. Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U. Pa. L.Rev. 335, 381-86 (2011) (arguing that "the modern process of image capture is an essential element in producing, and ultimately disseminating, photos, videos, and montages which modern First Amendment doctrine solidly recognizes as protected media of communication").

The defendants also raise the issue whether, more narrowly, a right to record police activity exists, a question that neither the Supreme Court nor the Second Circuit has decided. All of the circuit courts that have, however, have concluded that the First Amendment protects the right to record police officers performing their duties in a public space, subject to reasonable time, place and manner restrictions. See Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012) (invalidating a state eavesdropping statute as applied to the recording of police officers in the performance of their duties in traditional public fora); Glik v. Cunniffe, 655 F.3d 78, 82, 85 (1st Cir. 2011) (holding that there is "a constitutionally protected right to videotape police carrying out their duties in public" and that the right was clearly established; noting the "fundamental and virtually self-evident nature of the First Amendment's protections in this area"); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing a First Amendment right to photograph or videotape police conduct); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing a "First Amendment right to film matters of public interest"; the plaintiff was filming the activities of police officers at a protest).

The Court agrees with those cases. If one accepts that photographing and filming receive First Amendment protection as a general matter (at least when they are "expressive"), it is difficult to see why that protection should disappear simply because their subject is public police activity. "[T]he First Amendment 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." First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see also Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (stating that "[t]here is an undoubted right to gather news 'from any source by means within the law'" (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972))).

Further, "'[t]here is practically universal agreement that a major purpose of' the First Amendment 'was to protect the free discussion of governmental affairs.'" Relatedly, "the dissemination of information relating to alleged governmental misconduct … l[ies] at the core of the First Amendment." The videotaping of police officers in the performance of their duties in public plainly furthers these First Amendment goals.

On the other side of the ledger lies the government interest in preventing interference with legitimate police activity. But that interest does not override all others: for instance, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston v. Hill, 482 U.S. 451, 461 (1987). Videotaping from a reasonable distance is arguably less of a hindrance to legitimate police activity than the verbal challenges that the First Amendment unquestionably protects. In any event, the right recognized here and by other courts does not apply when the recording would impede police officers in the performance of their duties.

The defendants further assert that they are entitled to qualified immunity because the right to record the police is "insufficiently defined." Qualified immunity "operates 'to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.'" The defense is thus available to public officials "if their actions did not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.'"

The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact "clearly established" at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court "may nonetheless treat the law as clearly established if decisions from … other circuits 'clearly foreshadow a particular ruling on the issue.'" See also Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (requiring, in the absence of controlling authority, "a robust 'consensus of cases of persuasive authority'").

By November 2011, the First, Ninth and Eleventh Circuits had all concluded that the right exists. So had a number of district courts. See Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504, 512-13 (D.N.J.2006) (denying summary judgment in a First Amendment retaliation claim involving a plaintiff who was arrested for repeatedly photographing a police officer); Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D.Pa.2005) (holding that the plaintiff's "recording the activities of Pennsylvania state troopers as they went about their duties on a public highway" was protected by the First Amendment); Alliance to End Repression v. City of Chicago, No. 74 C 3268, 2000 WL 562480, at *21 (N.D.Ill. May 8, 2000) (holding that "taking photographs of the police" was "First Amendment conduct"); Connell v. Town of Hudson, 733 F. Supp. 465, 471 (D.N.H.1990) (holding that the police's interest in securing an accident scene did not outweigh the plaintiff's right to photograph the scene, and rejecting the defendants' qualified immunity argument); Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 638 (D.Minn.1972) (recognizing the right of a newsman to film a crime scene from any location to which the general public had access, unless he unreasonably interfered with or endangered the police).

The Court is unaware of any decision holding that the recording of police activity by a journalist otherwise unconnected to the events recorded is categorically not protected (rather than holding merely that the right to record was not "clearly established"). At the time of Higginbotham's arrest, there was thus a "robust consensus of persuasive authority" in favor of the right that "clearly foreshadowed" an analogous ruling by the Second Circuit or the Supreme Court. See Crawford v. Geiger, 996 F. Supp. 2d 603, 615-17 (N.D.Ohio 2014) (holding that the right to openly film police officers was clearly established by 2012, despite the absence of Sixth Circuit authority).

In so concluding, the Court parts ways with Mesa v. City of New York, No. 09 Civ. 10464(JPO), 2013 WL 31002 (S.D.N.Y. Jan. 3, 2013). That case cited Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010), and Szymecki v. Houck, 353 F. App'x 852 (4th Cir. 2009), as evidence of a circuit split on the existence of the right to record, and accordingly concluded that the right was not "clearly established" for qualified immunity purposes. In this Court's reading, however, Kelly and Szymecki did not decide whether the right existed: they merely held that, even if it did exist, it was not clearly established for the purposes of qualified immunity in those cases' factual contexts.

They are thus not relevant to the question whether there is a consensus on the existence of a journalist's right to record events in which he is otherwise a nonparticipant. In both cases, the plaintiff was affiliated with and in close proximity to the person being stopped or arrested by the police: in Kelly, the plaintiff was the passenger of the person stopped, and in Szymecki, the plaintiff was the wife of the arrestee. By contrast, Higginbotham had no relation to the arrestees he was filming, and was at a remove from the arrest.

In addition, both cases involved particularly dangerous situations: in Kelly, a traffic stop, which the Kelly court itself recognized as an "inherently dangerous situation," and in Szymecki, an armed arrestee who defied a police order. Finally, in Kelly, the plaintiff was videotaping the police surreptitiously, whereas Higginbotham's filming was overt.

Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation.

As alleged, however, Higginbotham's conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment.