A First Amendment right to record the police

From today's decision in Fields v. City of Philadelphia (reversing a trial court decision that I blogged about and criticized last year):

This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department's official policies recognized that "[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties."

No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct—the act of recording—was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.

Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public. See Turner v. Lieutenant Driver, 848 F.3d 678 (5th Cir. 2017); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014); Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995). Today we join this growing consensus. Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.

The District Court concluded that Plaintiffs engaged in conduct only (the act of making a recording) as opposed to expressive conduct (using the recording to criticize the police or otherwise comment on officers' actions). It did so by analogy, applying the "expressive conduct" test used to address symbolic speech: "Conduct is protected by the First Amendment when the nature of the activity, combined with the factual context and environment in which it was undertaken, shows that the activity was sufficiently imbued with elements of communication to fall within the First Amendment's scope."

We disagree on various fronts. Foremost is that the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent.

The First Amendment protects actual photos, videos, and recordings, and for this protection to have meaning the Amendment must also protect the act of creating that material. There is no practical difference between allowing police to prevent people from taking recordings and actually banning the possession or distribution of them. As illustrated here, because the officers stopped Ms. Geraci from recording the arrest of the protestor, she never had the opportunity to decide to put any recording to expressive use….

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 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 wide-open,'" 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.

Bystander videos provide different perspectives than police and dashboard cameras, portraying circumstances and surroundings that police videos often do not capture. Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.

The public's creation of this content also complements the role of the news media. Indeed, citizens' gathering and disseminating "newsworthy information [occur] with an ease that rivals that of the traditional news media." In addition to complementing the role of the traditional press, private recordings have improved professional reporting, as "video content generated by witnesses and bystanders has become a common component of news programming." And the inclusion of "bystander video enriches the stories journalists tell, routinely adding a distinct, first-person perspective to news coverage."

Moreover, the proliferation of bystander videos has "spurred action at all levels of government to address police misconduct and to protect civil rights." These videos have helped police departments identify and discipline problem officers. They have also assisted civil rights investigations and aided in the Department of Justice's work with local police departments. And just the act of recording, regardless what is recorded, may improve policing.

Important to police is that these recordings help them carry out their work. They, every bit as much as we, are concerned with gathering facts that support further investigation or confirm a dead-end. And of particular personal concern to police is that bystander recordings can "exonerate an officer charged with wrongdoing."

We do not say that all recording is protected or desirable. The right to record police is not absolute. "[I]t is subject to reasonable time, place, and manner restrictions." But in public places these restrictions are restrained.

We need not, however, address at length the limits of this constitutional right. Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. Geraci moved to a vantage point where she could record a protestor's arrest, but did so without getting in the officers' way. If a person's recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns….

We ask much of our police. They can be our shelter from the storm. Yet officers are public officials carrying out public functions, and the First Amendment requires them to bear bystanders recording their actions. This is vital to promote the access that fosters free discussion of governmental actions, especially when that discussion benefits not only citizens but the officers themselves. We thus reverse and remand for further proceedings.

Sounds generally quite right to me.

The panel majority concluded that the police officers were entitled to qualified immunity, because the right involved here wasn't clearly enough established: "[W]e cannot say that the state of the law at the time of our cases (2012 and 2013) gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected"; Judge Nygaard, dissenting in part, would have held that the law was clearly established. All three panel members agreed that the case should be sent back to the trial court to determine whether the city should be liable. And, most importantly, the decision makes clear that, going forward, the First Amendment right to record the police is clearly established in the Third Circuit.

Thanks to Howard Bashman (How Appealing) for the pointer.