Over the years, the nation's courts have moved towards recognizing First Amendment protections for citizens who film public servants carrying out public duties. Nearly every case has involved a citizen arrested for filming police officers, suggesting far too many law enforcement entities still feel their public actions deserve some sort of secrecy -- even as these agencies deploy broader and more powerful surveillance tools aimed at the same public areas where no expectation of privacy (under the Fourth Amendment) exists.
A rather disturbing conclusion has been reached by a federal court in Pennsylvania. Two cases involving people who had their photography efforts interrupted by police officers have resulted in the court finding there is no First Amendment right to film public servants. (h/t Adam Steinbaugh)
U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued his ruling in two consolidated cases filed against the city of Philadelphia by citizens whose cellphones were confiscated after they either photographed police activity or were barred from filming police activity.
Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.
"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," Kearney said.
"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."
The court has not yet discussed whether the actions of police in response to the filming violated the plaintiffs' Fourth Amendment rights, leaving that for a jury to determine. But what it does say about the First Amendment isn't encouraging.
According to this decision, the photography must be "expressive" to receive First Amendment protection.