First Amendment Victory: Third Circuit Rules Citizens and Journalists Have Right to Film/Record Police in Public

(The Rutherford Institute) PHILADELPHIA, Pa. — In a victory for the First Amendment, the U.S. Court of Appeals for the Third Circuit has ruled that citizens and journalists have a right to record police in public without fear of retaliation. Attorneys for The Rutherford Institute had filed a friend-of-the-court brief in the case arguing that the right of citizens to make recordings of public law enforcement activities is essential to protecting the citizen-press, which plays an ever-increasingly important role in the dissemination of information. A lower court had previously ruled that the City of Philadelphia could not be sued by those who were arrested or physically assaulted by police allegedly for having filmed police carrying out their duties in public.

Affiliate attorneys Jason P. Gosselin and Christopher F. Moriarty assisted The Rutherford Institute advancing the arguments in the Fields and Geraci brief.

“Police body cameras will never serve as an effective check on police misconduct as long the cameras can be turned on and off at will and the footage remains inaccessible to the public. However, technology makes it possible for Americans to record their own interactions with police and they have every right to do so without fear of arrest or physical assault,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.  “The ability to record police interactions in public provides for greater accountability when it comes to police interactions with the citizenry and should be preserved as a necessary right of the people.”

In September 2012, Amanda Geraci, a legal observer who monitors police interactions with citizens at protests or demonstrations, attended a protest against fracking at the convention center in Philadelphia. When police arrested one of the protesters, Geraci moved to a spot where she could better observe and videotape the incident. According to Geraci, a city police officer subsequently retaliated against her by physically restraining her against a pillar and preventing her from videotaping the arrest. In a separate incident, Temple University student Richard Fields was walking on Broad Street in Philadelphia when he saw 20 police officers standing outside a house that was hosting a party. Fields took a photograph of the scene with his cell phone. An officer then approached Fields, asked if Fields “likes taking pictures of grown men,” and ordered him to leave. When Fields refused, the officer handcuffed and arrested him, searched his belongings, and charged him with obstructing a public passage. The charge was eventually dropped. Both Geraci and Fields filed lawsuits asserting that the police retaliated against them for exercising their First Amendment right to record police activities in public.

In ruling on the lawsuits, a federal district court declared that the First Amendment protects the right to record police activities in public only if they can assert there was some “expressive” purpose for the recording. However, in reversing the lower court’s ruling, the Third Circuit Court of Appeals declared that the right to record police is not so limited, noting that numerous other courts have affirmed a First Amendment right to collect information about government activities, and have specifically affirmed a right to record police carrying out their duties in public. The court also ruled that the police officers involved were protected by qualified immunity, so they cannot be held personally liable for their actions.

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