Is the recording of police carrying out their official duties in public places protected by the First Amendment? Recently, in a case with implications for news organizations as well as citizen-observers, a federal court judge dismissed the First Amendment claims of two citizens against police officers who disrupted, inspected, restrained and/or cited them while they were recording police officers operating in public. In Richard Fields v. City of Philadelphia, 16-1650, 2017 WL 2884391 (3d Cir. July 7, 2017), the U.S. Court of Appeals for the Third Circuit reversed, holding that the First Amendment protects this activity.

In Fields, two private citizens recording police – without impeding their actions – suffered retaliation. Amanda Geraci filmed police arresting a protestor. “An officer abruptly pushed Geraci and pinned her against a pillar for one to three minutes, which prevented her from observing or recording the arrest. Geraci was not arrested or cited.” Richard Fields photographed police breaking up a frat party. An officer:

asked him whether he “like[d] taking pictures of grown men” and ordered him to leave. J.A. 8. Fields refused, so the officer arrested him, confiscated his phone, and detained him. The officer searched Fields’ phone and opened several videos and other photos. The officer then released Fields and issued him a citation for “Obstructing Highway and Other Public Passages.”

Plaintiffs sued police and claimed violation of their First Amendment rights. The District Court granted summary judgment in favor of Defendants, the City of Philadelphia and four individual police officers, on the First Amendment claims because Plaintiffs presented no evidence that their “‘conduct may be construed as expression of a belief or criticism of police activity.’” This was so, according to the District Court, because Plaintiffs had not expressed their reasons for recording to police.

The Third Circuit reversed the District Court’s rulings, which focused on contemporary expressive intent, and instead placed Plaintiffs’ activity at the apex of First Amendment protection for two reasons. First, the import of a recording may only become apparent after a police interaction. Second, the First Amendment’s protection of actual recordings would be meaningless unless it also protected the act of their creation. Thus, because the “First Amendment protects the public’s right of access to information about their officials’ public activities,” it necessarily goes beyond particulars such as protection of the press or of individual self-expression to prohibit government limitations on the information more broadly (citing First Nat'l. Bank of Bos. v. Bellotti, 435 U.S. 765, 783 (1978)). Indeed, information regarding police activity is entitled to special protection because it leads to “citizen discourse on public issues,” which occupies “the highest rung of the hierarchy of First Amendment values,” (quoting Snyder v. Phelps, 562 U.S. 443, 452 (2011)).

The Third Circuit noted that the right to record police is not absolute. Reasonable time, place and manner restrictions exist to facilitate investigations and protect lives. For example, citizen recordings of interactions with confidential informants may not be protected. This case did not present a situation where the outside parameters of the First Amendment protection needed to be resolved.

Despite placing Plaintiffs’ behavior on the “highest rung of the hierarchy of First Amendment values,” the Court found that the police who interfered with that behavior were entitled to qualified immunity because the right to record was not so clearly established that every reasonable official would understand that the retaliation here violated Plaintiffs’ rights. Simply, the Third Circuit had not previously “held that such a right exists, only that it might.” The issue of municipal liability was returned to the District Court.

Judge Nygaard concurred in part, but dissented regarding whether the First Amendment right was clearly established. He thought that it was clearly established, and therefore, that the individual officers should have faced liability. He noted that the police department’s official policies, which had been read to the officers on several occasions, advised them of that right. He also noted that current events, Department of Justice publications and other Circuit Court of Appeals opinions indicated that the right existed. Therefore “no reasonable officer could have denied at the time of the incidents underlying these cases that efforts to prevent people from recording their activities infringed rights guaranteed by the First Amendment.”

While the dissent and majority opinions disagree regarding the liability the individual officers faced, they are in complete accord regarding the future. There is a First Amendment right to record public police activity, and those doing so will be protected from retaliation from this point forward.

In finding that the First Amendment protects those recording police activity in public, the Third Circuit was consistent with every other Circuit Court of Appeals (First, Fifth, Seventh, Ninth and Eleventh) that has addressed the issue. These opinions reflect the vital role such recordings play in our democracy and reaffirm the First Amendment rights of citizen-observers and the news organizations that often distribute their recordings.