Two steps forward, one step back. That’s what it can seem in the photographer’s fight for journalistic freedom of expression. It wasn’t too long ago the sentiment was, and a legal one at that, that filming Police was within the very right of each citizen. That, apparently constitutionally protected right, has been challenged, nigh, rebuked and ruled against by Federal District Court Judge Mark Kearney in Pennsylvania.
It would seem that many law enforcement officers still feel that their public actions deserve whatever level of privacy they deem desirable. This is interesting, given they are public servants. And to paraphrase, the court in Pennsylvania has found or alleges, that there is no First Amendment Right to film public servants. This, objectively concerning conclusion, comes in the wake of two particular cases where equipment was confiscated from people who were casually filming Police, and the courts ruled in favor of the city of Philadelphia – that is to say, the Police.
There is, however, a caveat, and that is the filming of Police is protected under that right when there is challenge or criticism to do with Police conduct. What that seems to suggest is that casually filming mundane Police activity isn’t a protected endeavour, but filming Police activity of which you criticize, is. The notion conjures up the idea that if you see an officer on the street eating an ice cream, you can’t photograph them, but if you’re being arrested or witnessing some brutality or anything you are critical of, you can. I’m sure there lies a massive grey region therein.
According to Kearney,
“The citizens urge us to find, for the first time in this circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment…While we instinctively understand the citizens’ argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on ‘observing and recording’ without expressive conduct and, consistent with the teachings of the Supreme Court and our court of appeals, decline to do so today.
Fields’ and Geraci’s alleged ‘constitutionally protected conduct’ consists of observing and photographing, or making a record of, police activity in a public forum…Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct.”
What should be duly noted is that there has now been mention of the acceptability of the Police reactions to being filmed, and if those actions violate your Fourth Amendment rights, and that a jury will have to decide. (See ruling below)
I’ll be brief here, but it would seem this is a slippery slope that won’t end with filming police in public areas, but may extend to all public servants performing public duties. It also puts the onus on the photographer to be able to articulate an expressive intent and reason for filming, and the court system may be unfavorable to those who can’t do that (or who the police challenge and say they didn’t). So, just have your wits about you, and proceed, as always, with care.