A recent trial court order from a federal judge in Philadelphia regarding whether a person has a First Amendment right to record or photograph police activity has gotten a fair amount of media attention and has even been labeled, “a bizarre ruling.”
Agree with it or not, the analysis is not bizarre. But it is interesting, so let’s break it down.
In the consolidated cases of Richard Fields v. City of Philadelphia and Amanda Geraci v. City of Philadelphia, we have two instances where uninvolved citizens recorded police activity and were subsequently detained for doing so. Fields claims he was literally walking down the street when he saw 20 cops outside of a house and decided to take a single photo. Geraci holds herself out as a “legal observer,” trained by Cop Watch, who went to a protest to take photos. Both filed suits against the City for the officers’ reactions: detaining the plaintiffs and, at least for Fields, taking his phone and arresting him. A key fact: neither Fields nor Geraci expressed (verbally or otherwise) why they were taking photos nor was there an indication that they intended to publish the images.
The Court held that “taking or attempting to take pictures with no further comments or conduct is [not] sufficiently imbued with elements of communication to be deemed expressive conduct [protected by the First Amendment].”
You may breathlessly disagree or roundly cheer this conclusion at this point, but hold that thought.
Let’s talk about what this case is not.
One, it is a trial court order in Philly. Not much controlling authority here. I think it is safe to say that 99% of U.S. state and federal judges are free to conclude otherwise.
Two, the trial judge wrote, several times, that “we are not addressing whether the officers’ conduct violated the Fourth Amendment.” Indeed, the court starts off the memorandum with the zinger that “Philadelphia police officers possibly violated the Fourth Amendment” (well, it’s not a comedic “zinger” but that’s pretty clear tilting at windmills by federal judge standards). Moreover, this ruling doesn’t hinder the plaintiffs’ claims for damages
nor their attorney’s efforts to seek fees. And, finally, the trial judge sets out a pretty good roadmap how future “observers” might avoid or argue a First Amendment issue.
So here’s the court’s analysis: a person has First Amendment protection if they are engaged in constitutionally protected conduct. In this case, our plaintiffs claim that observing and photographing of police activity is their protected conduct. The court disagreed. The court cited precedent that “it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment applies” and that “the putative speaker bears the burden of proving that his or her conduct is expressive.” The court applies that standard and found that taking pictures alone is not expressive enough. Again, this is not the end of the case since the court has signalled that there are Fourth Amendment issues and damages to contend with.
If you are interested in people-photographing-police cases, this order has a number of citations worth pursuing.
Of note, there is a fairly short Eleventh Circuit case from 2000, Smith v City of Cumming, where the court held that, subject to reasonable time, manner, and place restrictions, there IS a First Amendment protection.
Photo credit: francepress.ga / aclu