The Volokh Conspiracy
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From Magistrate Judge Nina Y. Wang in Irizarry v. Yehia (D. Colo.), decided yesterday:
"[N]ews gathering is an activity protected by the First Amendment." … [T]his right is not limited to professional journalists or established media companies: "The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press." …
With these principles in mind, the court agrees that "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" Mr. Irizarry alleges that he recorded government officials performing their official duties in a public space [in this case, engaging in a traffic stop -EV] for the purpose of disseminating the collected information to the public. Indeed, Mr. Irizarry describes himself as a "journalist who regularly publishes stories about police brutality and conduct or misconduct."
He further alleges that Officer Yehia intentionally turned on all of his lights and positioned himself in front of Mr. Irizarry to purposefully obstruct Mr. Irizarry's ability to record the DUI stop. Plaintiff further alleges that Defendant took these actions in response to his recording, as he readjusted his position to make sure he was obstructing the camera view of the sobriety test and, after being criticized for such actions, "pulled out a large, extremely bright flashlight and began to shine it in both the plaintiff's camera as well as Mr. Brandt's saturating the camera sensors." …
Taking these facts as true as it must at this juncture, the court concludes that Mr. Irizarry has alleged sufficient facts at this stage to sufficiently allege a First Amendment violation based on either a theory of prior restraint or retaliation, i.e., that he was recording police conduct in a public forum and Officer Yehia's conduct did not amount to a reasonable time, manner, or place restriction….
The court concluded, though, that in this case the law wasn't sufficiently clearly established, and therefore Officer Yehia was entitled to qualified immunity:
Although there are a number of pre-2019 Circuit cases identifying a First Amendment right to record the police in public spaces while the police are performing their official duties, the court finds that Mr. Irizarry has failed to direct the court to a case which demonstrates that Officer Yehia was on notice that his conduct—standing in front of and shining a flashlight into Plaintiff's camera for an unknown period of time—violated Mr. Irizarry's First Amendment rights. In other words, the court concludes that the cases cited by Plaintiff do not demonstrate "that a reasonable official would understand that what he is doing violates [the constitutional] right."
The court noted that past cases involved arrest, detention, and credible threat of prosecution, and not just interference with newsgathering. The court also noted two past cases that found no First Amendment violation based on such interference:
In Asociación de Periodistas de Puerto Rico v. Mueller, No. 06-1931 (JAF), 2007 WL 5312566 (D.P.R. June 12, 2007), aff'd in part, vacated in part on other grounds, remanded, 529 F.3d 52 (1st Cir. 2008), a number of individuals and media organizations alleged that their First Amendment rights had been violated when agents from the Federal Bureau of Investigation ("FBI") "intentionally interfered with the gathering of information and news" by "violently knock[ing] aside microphones and cameras in an attempt to prevent [an] event from being recorded" and when one agent "used his hand to block a video camera lens." Id. at *4. In the summary judgment context, the court concluded that the plaintiffs had failed to allege a violation of their First Amendment rights, noting that the plaintiffs "[d]id not contend that law enforcement instructed them to stop recording the event, … that the agents threatened to arrest them," or "that the agents asked Plaintiffs to turn over their cameras or film in violation of the First Amendment.". The court indicated that it was unable to find a case in which a court found a First Amendment violation "based on law enforcement agents pushing away a microphone or temporarily seeking to obstruct recording by placing a hand in front of a camera."
Similarly, in Reno v. Nielson, No. 19-00418 ACK-WRP, 2020 WL 2309250 (D. Haw. May 8, 2020), the plaintiff alleged that a police officer had violated his First Amendment rights by hindering his ability to record an interaction with that police officer. Specifically, the plaintiff alleged that, once the police officer realized the plaintiff was recording the interaction, the officer "stood too close to [the plaintiff], thereby obstructing the view of the camera." The court noted that the plaintiff "was not prevented from filming, but only had some portion of the camera's view blocked by [the police officer's] body." Ultimately, the court concluded that "standing uncomfortably close … all the while permitting Plaintiff to continue filming, … would not chill a person of ordinary firmness from filming police activity in the future."
The court noted that plaintiff had also alleged that, "after shining his flashlight at Mr. Irizarry's camera, Officer Yehia 'drove right at [Mr. Irizarry] and Mr. Brandt, and sped away,' and 'blasted his air horn at Mr. Irizarry and Mr. Brandt.'" But the court concluded that "[i]t does not appear that Mr. Irizarry bases his First Amendment claim on this conduct."