The right for citizens to film the police, which under most circumstances is protected by the First Amendment, was dealt a potential blow this past Friday by a Federal Court Judge in the Eastern District of Pennsylvania.
Judge Mark Kearny, who heard not one, but two cases involving the filming of police – Geraci v. City of Philadelphia and Fields v. City of Philadelphia – ruled that filming the police without a specific criticism or challenge is not protected by our First Amendment right to free speech. In other words, unless you’re actively telling an officer that you disagree with what they’re doing, you’re not allowed to film them.
In the case of Fields v. City of Philadelphia, Temple University student Richard Fields was arrested when he saw a group of cops outside a party and decided to take a picture of them. In the other case, Geraci v. City of Philadelphia, Amanda Geraci was attending an anti-fracking protest on behalf of CopWatch Berkley where she was arrested for filming the arrest of another protestor.
According to Judge Kearny:
“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. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions.”
Critics of this decision, like UCLA law professor Eugene Volokh, feel that it is likely to be overturned in a Third Circuit Court and that the gathering of information, whether silent or not, is protected by the First Amendment – which protects the right to gather information for possible future publication.
So basically, if you witness police abuse or brutality from afar you must walk into the so to speak line of fire and first alert the police that you disagree with their actions before filming them. So now we have to risk harm and announce that we’re exercising our constitutional right before we exercise it? And what about evidence in a trial? If a citizen catches an officer killing someone but doesn’t announce they’re filming it, would it be thrown out of court like when evidence is thrown out during an illegal search and seizure?
The absurdity of this decision leaves many questions unanswered, questions that shouldn’t have to be answered in a so called democratic country that boasts about it’s freedom. Hopefully Professor Volookh is correct and this decision is eventually overturned. Until then we can chalk up yet another constitutional right this government has recently shitted on.