First Amendment Protects Right to Record Police Activity, Third Circuit Holds

Ethan M. Simon

The Third Circuit recently joined the growing consensus of courts recognizing that the First Amendment protects the act of recording police officers conducting their official duties in public. In Fields v. City of Philadelphia, — F.3d —, 2017 WL 2884391 (3d Cir. July 7, 2017), two individuals brought claims against the City of Philadelphia and certain police officers for violating their First Amendment rights to record public police activity.

Amanda Geraci, a member of a police watchdog group, attended an anti-fracking protest at the Pennsylvania Convention Center in September 2012. When Geraci attempted to record the police arresting a protestor, an officer pushed her and pinned her to a pillar for over a minute, thus preventing her from observing or recording the arrest. Geraci did not interfere with any police activity. She was not arrested or cited.

In a consolidated case involving a similar issue, Richard Fields, a Temple University student, was on a public sidewalk when he observed police officers breaking up a house party in September 2013. The nearest police officer was 15 feet away from him. Using an iPhone, Fields took a photo of the incident. When Fields refused to obey an officer’s order for him to leave the area, the officer arrested and detained him, confiscated his phone, and opened several videos and photos on Fields’ phone. All charges against Fields were eventually dropped. According to Fields and Geraci, neither intended to share their recordings—they merely wanted to record the police activity.

The United States District Court for the Eastern District of Pennsylvania dismissed the plaintiffs’ First Amendment claims. Although the existence of the First Amendment right to record police activity was not in dispute, the Court—on its own—declined to “create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions.”

The Third Circuit reversed, noting that the District Court’s focus on “expressive intent” “ignore[d] that the value of the recordings may not be immediately obvious…. 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 the material.” It reiterated that this “case is not about people attempting to create art with police as their subjects. It is about recording police officers performing their official duties.”

The Third Circuit’s reasoning is not novel. Several other circuit courts have reached the same conclusion. Traditionally, and as the text of the Constitution suggests, the First Amendment’s protections extend to speech, press, assembly, the right to petition, and religion. But recording police activity does not seem to fit squarely into any of these categories.

Without expressly relying on any of the five traditional First Amendment protections, the Court held that, subject to reasonable restrictions, the First Amendment “protects the public’s right of access to information about their officials’ public activities.” At first blush, it appears that the Court has created a new First Amendment right of “access to information.” However, the Court’s reasoning shows that the basis for this right is the freedom of press, and a recognition that in today’s world, everyday citizens play a role in delivering the news.

The Court writes that “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 the right, so does the public.” The Court continues, “[t]he public’s creation of this content also complements the role of the 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.”

Thus, Fields is a tacit recognition that in the age of electronics, the press is so much more than traditional broadcast news and newspapers. Today, everyone with a smartphone is essentially a member of the press and “news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.” Based on this expansive view of the press, the right to record police activity extends not only to the traditional press, but to the modern press—that is, the public.

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