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News & Insight

No, First Amendment Rights Don’t Extend To Filming Police, Says Federal Judge

By Kishore Sawh on February 24th 2016

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.

photography-crime-police-deputy-office-arrest-constitution-2

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)

The Trial Court Opinion

[REWIND: NYPD CHIEF SAYS PHOTOGRAPHING & RECORDING POLICE IS NOT A CRIME]

Thoughts

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.

Sources: Independent, The Washington Times

About

A photographer and writer based in Miami, he can often be found at dog parks, and airports in London and Toronto. He is also a tremendous fan of flossing and the happiest guy around when the company’s good.

Q&A Discussions

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  1. Austin Swenson

    In my journalism classes in college, we discussed stuff like this all the time (I have a communication degree) and I think that any judge that tries to take the liberty of filming police away is going to get that ruling overturned, but I should say a few things that I think really need to be established with our liberty to film police:

    For all that is Holy, don’t get in their way when they are doing something. If you are going to film them, do it from a reasonable distance to keep yourself safe and them safe too,

    Secondly, don’t taunt them when you film them. Be a silent observer. Baiting an officer to behave poorly reflects poorly on you, and also lowers your credibility.

    Finally, get out of the customer mentality that public servants are somehow subhuman, and are subject to our demands. With all the garbage prejudices out there against a variety of different things, let’s remember that police are humans too.

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  2. Bob McCormac

    Our first and fourth amendment rights continue to be curtailed by activist right wing judges. I fear that it is only going to get worse.

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  3. Scott Spellman

    I also can understand that the First Amendment does not cover filming of police. However, the real issue is that it is essential for a real democracy to never pass laws making it illegal or a threat to film police, law enforcement, or other state or federal employees.

    The Constitution does guarantee our rights. Law enforcement must figure out how to do their jobs without violating the rights of people when their is no evidence of a crime.

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  4. Amanda Jehle

    Although I think it will be over turned, I’m going to play devil’s advocate here. I used to work for the Philly DA’s office, which meant I got out & about in the city quite a lot with the PD. Everyone with a cell phone is a freaking photographer/videographer. It’s really annoying. I’ve seen plenty of people get in the way during an arrest to film it. That’s not safe for the officer or the idiot with the cell phone. I’ve also seen people shout at an officer & try to goad them into responding inappropriately (seriously awful things about their spouses/children, etc) while they’re filming. So I understand the trepidation of the officers when it comes to having every citizen shoving a camera in their faces as they do their jobs. I wouldn’t like it either. Oh & for the guy who said “At any rate – our rights come first. We pay them, they are our servants and not the other way around…” you’re the biggest a-hole I’ve come into contact with today & that’s saying something. Officers are not servants. Your rights don’t come before theirs; they’re citizens of this nation too, so they have exactly the same rights you do. Do you think your rights come before the teachers who teach our children? They’re paid on the county’s dime just like cops. Clients pay you for photographs? Are you their servant? Are their rights more important than yours when you’re photographing their event? No one calls teachers “servants” & no one should call the police & fire “servants” either; its demeaning and insulting especially in the context you just used it. They’re people with families who choose every day to work in their communities. Oh & in case you missed the memo, they pay taxes, too. Are there cops out there who misuse their position? Yes. Does that mean every police officer in the country has no rights? Absolutely not.

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    • Dave Haynie

      Yes, absolutely, police have the same personal rights as anyone else. But not special rights. If I’m filming or photographing a police officer in public, I’m just as within my rights to do that, no more, no less, than if I’m shooting a Wall Street executive or a street person.

      And I completely agree that my freedom to do this ends at the officer’s ability to do his job. If I’m shooting him from a distance while he’s arresting someone, I’m good. If I’m up in his face and preventing him from acting to protect us, I deserve to be pistol-whipped, if that solves the problem.

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  5. Callib Carver

    I’m a journalism and a photo major. I’m going to send this over to my j-professors, one of which teaches ethics (aimed at journalism).

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  6. robert garfinkle

    They are our servants, we pay them, our rules!!!!! we are not subjects

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    • Travis Volkman

      Wow, let me guess….you are a millennial?

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    • Dave Haynie

      I feel the same way, and my kids are millennials.

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    • Dave Haynie

      Well, ok.. not servants exactly. But we do pay their salaries. We pay them to act in the public interest. That should imply that, as long as we don’t cross the line and interfere with their ability to do their job, or violate any normal citizen’s rights to privacy, there should be no problem shooting them.

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    • Jason Markos

      As our servants, they typically get a lot less pay than in the private sector, and are typically motivated by our well being. They are also subject to, and have to deal with, abuse and harassment for more than many of us will ever have to deal with. We’re lucky to have these ‘servants’.

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  7. John Cavan

    I think a federal judge is about to get smacked for this one… It will be overturned, it’s inevitable. While the potential for abuse by police is enormous if the citizens can’t reasonably record, there remains the very real truth that actions taken in public cannot, by necessity, be private and that is even more true when the actions are being conducted by public servants. The ruling won’t survive challenge, there is no public interest served by this decision.

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    • robert garfinkle

      it will be overturned.

      here in Illinois, there are rules protecting our rights to film / record. There was a “matter” within the last few years, where confusion lied in a law that prevented people from private conversation recording and filming of police etc. In our state, both parties have to know if a recording (phone) conversation is taking place, that has always been the case. Yet, there have been incidents where police tried to apply that law with photographers / videographers, yet it’s two different things. about a year ago, a bunk story came out how the Illinois government banned recording of officials and tying it to all sorts of consequences…. SB1342

      Elaine Nekritz – http://repnekritz.org/ speaks about SB1342 and a BS story that generated about it…

      At any rate – our rights come first. We pay them, they are our servants and not the other way around…

      let freedom ring

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  8. Albert Evangelista

    I know many street photographers that won’t be happy about this….

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