Smile – I’m Recording You: The First Amendment and Right (or not) to Record

In science, the term “observer effect” refers to changes that the act of observation will make on a phenomenon being observed. Pennsylvania district court has just ruled that there is no First Amendment right to video police officers while in the line of duty because merely observing is not expressive activity. Fields v. City of Philadelphia, No. 14-5264 (E.D. Pa., February 19, 2016). Given the ubiquity of devices and technologies capable of making video and sound recordings and the impact of decision such as Fields on newsgathering and other potential implications, the holdings of this case counsel us to do a quick review of recent cases and the state of the law in this area.

The issues in Fields arose out of two separate but related incidents, one in which Temple student Richard Fields used his cell phone to photograph approximately twenty police officers standing outside a home hosting a party. An officer approached him after he took the picture and asked him to leave. Fields refused, and the officer detained him, handcuffed him, emptied his pockets, took his cell phone and searched his phone. The officer placed Fields in a police van while citing him for Obstructing Highway and Other Public Passages then returned the cell phone and released Fields from custody. The officer did not appear for the court hearing on the citation.

In the other incident, self-described “legal observer” Amanda Geraci, following training at Cop Watch Berkley, attended a public protest against hydraulic fracturing near the Pennsylvania Convention Center and carried a camera with her to videotape the scene. During the protest, Philadelphia police arrested one of the protestors. Geraci alleged that as she moved closer to get a better view and hoped to videotape the incident, an officer “attacked her” by physically restraining her against a pillar and preventing her from videotaping the arrest. The police released Geraci and did not arrest or cite her.

Fields and Geraci filed separate actions under 42 U.S. C. § 1983 seeking damages for constitutional injuries, including First Amendment retaliation inflicted by individual Philadelphia police officers and their employer City of Philadelphia. However, the court found there was “no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct.” Third Circuit precedent, Kelly v. Borough of Carlisle, recognizes “videotaping or photographing the police in the performance of their duties on public property may be a protected activity” and, “more generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.” However, activities observing and recording the police may not be protected unless accompanied by an “expressive component.”

The Field court reviewed several post-Kelly district court decisions in support of its analysis. In Fleck v. Trustees of Univ. of Pennsylvania the court “granted summary judgment to defendant officers on plaintiffs’ claim officers violated their First Amendment rights when seizing a video camera after plaintiffs allegedly refused to shift the camera away from officers’ faces after being ordered to do so.” Fields cites Fleck for the proposition that “the right to record matters of public concern is not absolute” and, in the context of qualified immunity, “our case law does not clearly establish a right to videotape police officers performing their official duties.” Fields also cites to Gaymon v. Borough of Collingdale in which the court rejected qualified immunity for the officers where plaintiff videotaped police while verbally protesting police harassing her husband during an arrest. Gaymon held that “It is indisputable that ‘the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” and that “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

Robinson v. Fetterman and Montgomery v. Killingsworth, says Fields, hold only that the right to observe and record is protected by the First Amendment only in certain contexts. In Robinson, the court held videotaping in conjunction with an intent to chronicle or criticize the alleged unsafe manner in which officers inspected trucks on a state roadway is “speech” critical of the government. An “individual observing and videotaping for the stated purpose of challenging or protesting police conduct is expressive conduct entitled to First Amendment protection.” Killingsworth stands for the proposition that “Peaceful criticism of a police officer performing his duties in a public place is a protected activity under the First Amendment.” Fields found that the citizens videotaping and picture-taking in Montgomery, Gaymon, Fleck and even Robinson all contained some element of expressive conduct or criticism of police officers and are “patently distinguishable from Fields’ and Geraci’s activities.”

I would note the inconsistency in Fields’ reference to summary judgment in favor of the officers in Fleck even though there was “expressive conduct” at issue in that case – “refusing to shift their cameras away from officers’ faces.” Fleck, involving a case of people preaching at and blocking the entrance to a mosque carrying handheld cameras that they literally stuck in the officers’ faces, actually found that there “was no First Amendment right where” the plaintiffs “actively impeded efforts to restore order.”

But the larger issue here is the emerging circuit split in which the Third Circuit is in the minority among those circuits that have considered the free speech right to openly record police activity. The Eleventh Circuit held there is a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct” because the First Amendment protects the right to record matters of public interest, Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000). The First Circuit held that the right to film government officials was clearly established in that circuit, Glik v. Cunniffe, 655 F.3d 78 (1st Cir.2011), as has the Seventh Circuit, American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir.2012). The Ninth Circuit recently held there is a clearly established constitutional right to photograph the scene of an accident during a police investigation, Adkins v. Limtiaco, 537 Fed. Appx. 721, 722 (9th Cir.2013).

In the leading case of ACLU v. Alvarez, the fact pattern was essentially chosen by the ACLU to test the Illinois wiretap statute as applied to a “program of promoting police accountability by openly audio recording police officers without their consent when: (1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.”. Nevertheless, Alvarez unambiguously finds

The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the State’s Attorney insists.

Those who follow high court First Amendment will be interested to note that Alvarez relied upon the sometimes criticized Citizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876, 896, 175 L.Ed.2d 753 (2010) for the straightforward application of the principle that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.” Alvarez put it that “the eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication. Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording.”

However, cases have distinguished from Alvarez even while acknowledging the force of its holding. For example, in the case of Rezvanpour v. SGS AutoServices, Inc., 2014 WL 3436811 (C.D. Cal. July 11, 2014), SGS was sued in a class action suit for its policy of recording its scheduling end-of-lease vehicle inspections on behalf of automobile dealers across the country in violation California Penal Code section 632.7, which prohibits nonconsensual recording of communications involving at least one cellular telephone. The court narrowly reads Alvarez by questioning whether SGS could claims its protection in that the purpose of recording customer phone calls was for “service observing”-essentially monitoring the calls for quality assurance- and not for later dissemination. Ultimately, SGS distinguished Alvarez on grounds the California statute was more narrowly drawn, affecting only the targeted cell phone communications instead of all communications.

The case of Raef v. Superior Court, 193 Cal.Rptr.3d 159(Cal. App. 2015) involved Raef’s challenge charges of driving in willful and wanton disregard for the safety of others (count 1) and following another vehicle too closely (count 2), both with the intent to capture a visual image of another person for a commercial purpose. He argued these ran afoul of Alvarez because the “[a]udio and audiovisual recording are communication technologies, and as such, they enable speech.” The court rejected this on grounds that, “[a]ssuming the intent to take a photograph or make a recording is an intent to engage in an expressive, or potentially expressive, activity, that intent is subject to section 40008 not because of the ‘communicative impact’ of the intended activity, but because of the ‘special harms’ produced by the conduct it motivates.”

These cases show the many areas these constitutional issues impact and the conflicting authority and logic used. So far, no case has invoked the “observer effect” as part of its analysis. But we are watching.