On July 7, 2017, the United States Court of Appeals for the Third Circuit held, for the first time, in Fields v. City of Philadelphia, that there is a First Amendment right to record police officers in public while they are performing their official duties. As a result, the Third Circuit joins five other Courts of Appeal in so holding.
In the two lawsuits, which were combined for purposes of the appeal, two individuals separately attempted to record Philadelphia police officers carrying out official duties in public, without interfering with the officers. The two individuals were retaliated against even though the Philadelphia Police Department’s official policies recognized that private persons have a First Amendment right to observe and record police officers engaged in the public discharge of their duties. The United States District Court for the Eastern District of Pennsylvania ruled against the individuals, determining that a certain degree of expressive conduct is required for it to be protected by the First Amendment right, and that silently recording the police is not “sufficiently expressive.”
The Third Circuit Court of Appeals explicitly rejected the District Court’s “sufficiently expressive” standard and held, “Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.” The Court explained that although it had sidestepped this legal question in past cases, it was now time to address the issue head on because “technological progress and the ubiquity of smartphone ownership [in recent years]” has put us “in an age where the public can record our public officials’ conduct and easily distribute that recording widely” and this “increase in the observation, recording, and sharing of police activity has contributed greatly to our national discussion of proper policing.” The Court went on to expound, “Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues.”
The Court was careful to qualify its holding by stating, “We do not say that all recording is protected or desirable. The right to record the police is not absolute” and “is subject to reasonable time, place, and manner restrictions” although such restrictions are “restrained” in “public places.” Therefore, “if a person’s recording interferes with police activity, that activity might not be protected.”
Despite determining that there is a First Amendment right to record the police, the Court went on to hold that the police officers involved were entitled to “qualified immunity” and dismissed the claims against them. Qualified immunity is available to police officers when the constitutional right at issue is not “clearly established” at the time of the incident. The majority of the Court held that a First Amendment right to record the police in public while performing their public duties was not clearly established at the time of the events in question. However, one of the three Circuit Court judges disagreed and issued a separate opinion in which she stated that she believed such a right was clearly established at the time given the consensus of the other Courts of Appeal and the Police Department’s own admission in its official policy that such a right exists. Despite finding that the officers were protected by qualified immunity, the Court remanded the case back to the District court for a determination regarding whether the City of Philadelphia was liable for the violations, presumably on the theory that the Police Department was deliberately indifferent to the need to adequately train and/or supervise its officers regarding the First Amendment right to record the police.
The important take-away from this case is that going forward, it is now clearly established that there is a First Amendment right to record the police in public during the course of their official duties, unless the person recording is directly interfering with the police during their performance of those duties. That is good news for all of the millions of citizen journalists out there, including anyone walking the streets with a smartphone.
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