The Volokh Conspiracy
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First Amendment Right to Film on Public University Campuses (at Least on Open Quads)
From Chief Judge Sarah Morrison (S.D. Ohio) yesterday in Peace v. Carter:
On the morning of April 25, 2024, protestors against Israel's actions in Gaza and OSU's involvement with Israel gathered at the South Oval (a space on OSU's campus in front of the student union) and set up camping equipment. At approximately 9:30 a.m., OSU police ordered that all camping equipment be removed from the South Oval and the protesters complied. Subsequently, OSU Police Division Deputy Chiefs Eric Whiteside and Dennis Jeffrey determined that the protest violated OSU's University Space Rules ("USR") because it was a continuation of an event that had improper tents. Later that evening, another group of protestors attempted to construct encampments on the South Oval….
Mr. Peace graduated from OSU in 2021. He arrived at the South Oval at approximately 9:57 a.m. on April 25, 2024, and joined with protestors who were expressing their criticism of OSU and Israel in a peaceful and nondisruptive manner. By the time he arrived, protesters had already begun to tear down the encampment; they finished within a few minutes of his arrival.
Within ten minutes of Mr. Peace's arrival, OSU police officers, including Deputy Chief Whiteside, approached the protesters with whom Mr. Peace was standing. While Mr. Peace filmed, Deputy Chief Whiteside told them that the University had determined that their protest was a continuation of an event that had violated the USR by having tents and that the protestors needed to disperse. At no point did Deputy Chief Whiteside tell them to leave the OSU campus or the South Oval. The protestors dispersed and people not involved in the protest continued to use the South Oval as normal.
Mr. Peace walked approximately 150 feet to the south of the original encampment site where he began filming an "arrest squad" of OSU officers under the command of Lt. Alan Horujko. Around 10:17 a.m., while Mr. Peace was filming, Lt. Horujko directed two members of the arrest squad to arrest Mr. Peace for criminal trespassing.
Mr. Peace was detained for the rest of the day, incarcerated, and released on bond that evening. He was charged with criminal trespassing in a complaint signed by Detective Susan Liu but the charge was later dismissed unconditionally.
Because of his arrest, Mr. Peace was fired from his job as a contractor for a delivery service and his application to work for another delivery service was denied….
The court allowed Peace's First Amendment claim to go forward:
"[T]he First Amendment rights of speech and association extend to the campuses of state universities." Even though the Supreme Court and Sixth Circuit have not determined whether the public enjoys a First Amendment right to record police activities in public places, "[s]even circuit courts have held the public has some right to film police." Based on the body of persuasive authority, this Court "agree[d] that the First Amendment protects the public's right to film police and other government agents subject to reasonable restrictions."
Defendants provide no basis to find as a matter of law that Mr. Peace's alleged conduct filming OSU police officers on the South Oval does not enjoy First Amendment protection. Instead, they argue that "there is no First Amendment right to set up an encampment on public property." That is not what Mr. Peace alleges occurred.
He alleges that he was merely standing with the protestors at the morning encampment site. He claims that the original encampment was taken down shortly after his arrival and that he and the other protestors dispersed when ordered to do so by OSU police. He was standing 150 feet away from the original encampment site at the time of his arrest. While a second encampment was attempted later that evening, that second encampment did not begin until well after his arrest. Assuming these allegations are true, whether the First Amendment provides a right to set up encampments is immaterial to Mr. Peace's conduct….
And the court allowed Peace's wrongful arrest claim to go forward as well, concluding that Peace had adequately alleged that the police lacked probable cause to arrest him for trespass:
"In Ohio, an individual commits criminal trespass by '[k]nowingly enter[ing] or remain[ing] on the land or premises of another' absent 'privilege to do so.'" A "privilege" is "an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of necessity." Generally, a person has a privilege to enter and be upon the public areas of public property but a public official or agency that owns or controls public property can revoke that general privilege. Even so, in the context of public property, "a criminal trespass may be inappropriate where, subject to certain time, place, and manner of use restrictions, the defendant is lawfully exercising his or her First Amendment rights to free speech and peaceful assembly."
Defendants argue that the arresting OSU officers had probable cause to arrest Mr. Peace for criminal trespass because "(1) law enforcement officers asked [him] to vacate the area near the planned encampment site and (2) [he] was arrested thereafter while still in the area." But, according to the Amended Complaint, Deputy Chief Whiteside only told the protestors at the morning encampment site (including Mr. Peace) to "disperse" and "and did not at any time tell them they needed to leave the Ohio State Campus or the South Oval." Mr. Peace alleges he was arrested approximately 150 feet away from the encampment site and there are no allegations that OSU officers told him to leave after his dispersal from the morning encampment site. While the evidence may subsequently reveal Defendants' factual arguments, Mr. Peace has sufficiently pleaded facts suggesting that the OSU officers lacked probable cause to arrest him….
Edward Reilley Forman, Helen M. Robinson, John Spenceley Marshall, Madeline Jean Rettig, and Samuel Micah Schlein (Marshall & Forman LLC) represent plaintiff.
