Filming cops is not protected under the First Amendment of the Constitution, at least according to one federal judge. For the first time in a federal case, reports The Week, it was determined that passively filming cops is not a protected act. The case was heard in a district court in Pennsylvania, and the ruling could have a massive impact on how such cases are handled in the future, potentially setting an Orwellian precedent.
The case in question was brought against the City of Philadelphia, and was actually a joint lawsuit covering two separate incidents. The complaint, reports Newser, filed in the names of Amanda Geraci and Richard Fields, accused the city of infringing on their First and Fourth Amendment rights. In both of their cases, they were detained by law enforcement while filming cops, an act they believed was protected under the Constitution.
In the case of Amanda Geraci, a “trained legal observer,” she says she was physically restrained in order to be prevented from filming cops at a 2012 fracking protest. Field says he was handcuffed and detained and his cellphone removed from his custody after filming cops outside a house party at Temple University in 2013.
In both instances, the joint complainants believed their filming of cops was protected under the First Amendment, and the pair reportedly filed suit to curb the city’s “illegal practice of arresting citizens in retaliation for observing or recording the police performing their duties.” According to the ACLU, this was the fourth lawsuit in a series of suits designed to do just that.
Unfortunately for Geraci and Field, Federal Judge Mark Kearney ruled that by filming cops “without any challenge or criticism,” the pair weren’t engaged in “expressive conduct.” Therefore, their actions were not protected under the First Amendment. The judge went on to suggest that if the plaintiffs had spoken or yelled some “anti-police expletive” while filming the cops, they would have been put into a protective category denied to them by their silence.
In a nutshell, filming cops is not protected under the First Amendment unless you are engaged in expressive conduct, such as yelling or speaking.
“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.”
The American Civil Liberties Union (ACLU) announced Wednesday that it has plans to appeal the judge’s ruling, Philly.com reports.
“We don’t think the judge got it right at all. It’s really important to us to get the right ruling on this, so we’re going to keep working at it.”
A civil rights lawyer who represented a client arrested in 2010 for filming cops, Paul Hetznecker, went on record saying that he found the judge’s ruling “remarkable.”
“Frankly, I’m surprised. Gathering information for dissemination is a fundamental part of what we do under the First Amendment, and videotaping a police officer conducting their duties in a public space is a fundamental example of gathering information.”
Judge Mark Kearney defended his ruling, stating that there has yet to be a definitive ruling issued by the Third Circuit U.S. Court of Appeals. The appellate court has never gone further than saying in 2010 that filming cops who were doing their jobs on public property may be protected under the First Amendment.
Judge Kearney’s ruling may even jeopardize earlier, contrary, rulings where two other federal judges in Philadelphia had ruled that the First Amendment provided at least some right to film cops.
While the District Court ruled that the plaintiffs’ First Amendment rights did not extend to filming cops, the judge did allow their claims for violations of their Fourth Amendment rights.
There is no word on when an appeal will officially be filed in this case, but reports indicate that counsel for the plaintiffs are planning to file “immediately.” Until then, this ruling means that the right to film cops is not protected free speech unless you are actively protesting/expressing yourself as well.
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