No First Amendment Right to Film Others' Party in Public Park, Even to Try to Document Alleged Ordinance Violations

From Monday's decision by Judge Edward Chen in Barroca v. Hayward Area Recreation & Parks Dist. (N.D. Cal.):

Plaintiff also asserts a First Amendment claim based on an incident in which a park ranger told him to stop filming a family barbecue held by Marco Hernandez, a retired HARD employee.

The Ninth Circuit has "recognized that there is a First Amendment right to film matters of public interest." A well-established application of this right is recording the official conduct of police and other public officials in public spaces.

Here, Plaintiff alleges that he noticed Mr. Hernandez, a retired HARD employee who lives in the caretaker's house in the park, hosting a family and friends barbecue in a public area next to the caretaker's house. Plaintiff alleges that Mr. Hernandez and his guests were violating numerous park ordinances, including having a fire, drinking and serving alcohol, and using a fenced-off yard for his guests. Plaintiff started filming from 150 yards away. Ten minutes later, Ranger Oliver arrived and ordered Plaintiff to stop filming. When Plaintiff refused to stop videotaping, Ranger Oliver called the Alameda County Sheriffs and told them there had been an altercation. Plaintiff does not allege that he was arrested.

Plaintiff fails to satisfy the first prong of First Amendment retaliation—that he was engaged in protected First Amendment conduct. While the First Amendment protects filming public officials in the exercise of their duties, Mr. Hernandez was not a public official and was not engaged in any public duty. As to the more general rule that the First Amendment protects filming matters of public interest, Plaintiff provides no authority that a family barbecue in a public park is a matter of public interest, whether or not Plaintiff suspects that barbecue violates park ordinances. The Court does not find that the barbecue, as alleged by Plaintiff, constitutes a matter of public interest….

Further, any such claim would be barred by qualified immunity since the right alleged is not "clearly established." …

But see Ness v. City of Bloomington (8th Cir. 2021), which struck down an ordinance banning photographing children in park; the court concluded that the ordinance was content-based and didn't pass strict scrutiny, but I take it that the stop-filming order was likewise likely content-based—I saw nothing in the opinion suggesting there was a general filming ban, and I assume that filming something other than people (e.g., interesting birds perched in a tree) wouldn't have led to the order.

William Ernest Camy, Matthew W. Gross, and Porter Scott, and Jackson D. Morgus (Burke, Williams & Sorensen, LLP) represent defendants.

Comments

[John F. Carr]

"Plaintiff provides no authority that a family barbecue in a public park is a matter of public interest, whether or not Plaintiff suspects that barbecue violates park ordinances."

If plaintiff complained that police ignored the ordinance-violating party, would that be of public interest?

[ReaderY]

The 2 standards are different. The 8th Circuit asks if photographing others in public is related to an “expressive purpose.” The 9th Circuit asks if the subject of the photography is “a matter of public concern.”

By the 9th Circuit standard, content neutrality is irrelevant. If photography of public places isn’t protected by the First Amendment except on matters of public concern, then the First Amendment itself is content-dependent. Photography on matters not of public concern simply isn’t speech.

A distinction between content that lies within and content that lies outside its protection is a content-based distinction, but not a “discriminatory” one so far as the First Amendment is concerned. A distinction between speech and non-speech does not discriminate between different kinds of speech.

[MollyGodiva]

This is very wrong. It is well established that photography/video in public is 1A protected.

And park rangers allowing violations of regulations is a matter of public interest. Also why is a non park employee living in a park house? This stinks of corruption.

[Brett Bellmore]

"Also why is a non park employee living in a park house?"

Some parks rent out excess living space for added revenue, rather than just leaving it empty. When I first moved to the South, I nearly ended up living in a state park, because the house was available, and the rent reasonable.

[Absaroka]

How can any ban on public filming be OK? Surveillance cameras, dash cameras, a news story on a protest, or human interest story on what a nice spring day it is in the park?

Not arguing, I just don't get how you can be in a public space and object to being filmed?

[Ridgeway]

Yeah -- this just seems like an obviously wrong decision. I could see how subsequent publication of the film could implicate some privacy issues, depending on the circumstances, but the making of the film? I dont see it.

[Brett Bellmore]

I've always found bizarre the notion that it could be illegal to record what is legal to see and remember. You're allowed to know it, but forbidden to prove it?