Third Circuit Holds That Recording Police In Public Is Protected By The First Amendment

Today, in Fields v. City of Philadelphia, et al., the Third Circuit Court of Appeals joined five other circuit courts in holding that the 1st Amendment protects the public recording of police officers.

As stated in the decision, the background is somewhat simplistic – Mr. Field and a Mrs. Geraci attempted to record “Philadelphia police officers carrying out officia duties in public and were retaliated against even though the Philadelphia Police Departments official policies recognized that ‘[p]rivate individuals have a First Amendment right to observe and record police officers engage in the public discharge of their duties’.”

In discussing the First Amendment, the court explained that

The First Amendment protects the public’s right of access to information about their officials’ public activities. It “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

The court therefore went on to hold

Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information.

More interestingly, the court properly noted that

Civilian video also fills the gaps created when police choose not to record video or withhold their footage from the public.

And that

the proliferation of bystander videos has “spurred action at all levels of government to address police misconduct and to protect civil rights.”

However, the court cautioned that it was not holding that all recording is protected or desirable. Specifically, the court declared that

[I]t is subject to reasonable time, place, and manner restrictions.

Unfortunately, because the court found that one’s First Amendment protections in recording the police had not been sufficiently established at the time of the officers conduct, it granted them qualified immunity. However, any officers that violate someone’s right to record the police in public, due to the decision, will no longer be able to claim qualified immunity, because now it has been established.

If you or anyone you know has been subjected to criminal charging, retaliation or harassment as a result of recording the police in public, contact us to discuss YOUR rights.

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