Activist Appeals Court Decision Stating Public Has No First Amendment Right To Record In Public Areas

from the in-which-a-police-station-lobby-becomes-a-jury-trial dept

Contained in a long list of rights violations allegedly perpetrated on activist Matt Akins is a very interesting First Amendment claim. It's not that Akins' claim is particularly interesting. It's that the court's decision on that issue seems completely wrong.

Akins is no stranger to arrests and interactions with law enforcement.

Akins runs the Facebook page Citizens for Justice, which publishes videos of police on duty and often criticizes and scrutinizes police practices. He used to publish on a website. Among Akins’ encounters with police in which he alleges his rights were violated is a driving while intoxicated checkpoint that led to a felony gun charge. At the checkpoint, Hughes ordered him out of the car and found a handgun in Akins’ waistband. Though it was legal for Akins to conceal the gun in his car, he had no concealed carry permit, and Hughes arrested him. The suit has alleged that Hughes created the crime by making Akins get out of the car. But the officers have argued at the district court level that Akins could have told Hughes about the gun before exiting the vehicle. There also was a June 2010 traffic stop in which Schlude pulled Akins and two other men over and searched the car without consent, according to the brief. Akins had a rifle in the car he legally owned, and when Schlude put it back in the car, he told Akins “that having a 10/22 rifle in his car could result in his summary execution by an officer that felt concerned for his safety by a firearm being in the vehicle and that a jury would acquit the officer of his homicide due to officer safety concerns,” according to the brief.

His 80-page petition [PDF] to the Eighth Circuit Court of Appeals hopes to overturn summary judgment in favor of the defendants, who all saw Akins' claims dismissed under qualified immunity. But his First Amendment claims were also dismissed by Judge Nanette Laughrey, using some very dubious precedent.

Akins also argues that he was retaliated against when he was stopped from filming a citizen in the Police Department lobby in 2011; his links to the Citizens for Justice page were removed from the Police Department's Facebook page in the summer of 2011; and he was excluded from a Police Department Media Training Day in October 2015. None of the individual Defendants participated in these incidents, and as discussed above, the City cannot be liable under § 1983 on a respondeat superior theory. Moreover, Akins points to no unconstitutional municipal policy or custom. Further, he has no constitutional right to videotape any public proceedings he wishes to. See Rice v. Kempker, 374 F.3d 675, 678 (8 Cir. 2004) ("[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public."), and Wis. Interscholastic Ath. Ass'n v. Gannett Co., 658 F.3d 614, 627-628 (7 Cir. 2011)

Two of the three claims have little legal merit. The Police Department is free to remove links from its official Facebook page without crossing the line into censorship and there's nothing in the First Amendment that forces the PD to open up its "media training day" to every member of the public. The second citation deals with Gannett News Service protesting a Wisconsin school's decision to provide coverage exclusivity to one of Gannett's competitors. As the court noted then, there's nothing in the First Amendment that prevents public institutions from entering into exclusive broadcast contracts.

Other courts considering exclusive broadcast agreements between a government entity and a private party have universally, as far as we can tell, reached the same conclusion. Gannett, at least, has shown us no case where an exclusive broadcast agreement has been invalidated on First Amendment grounds.

This handles the "Media Training Day" part of the complaint. But the last of three First Amendment claims -- that Akins was told to stop filming in the Police Department's lobby -- is handled much more questionably. The court cites Rice v. Kemper, asserting that there is no First Amendment right to record government proceedings in public areas. The precedent cited is apples-to-oranges, comparing an open lobby where the public is free to come and go with few restrictions to a death penalty execution, where the public's access to a "government proceeding" is considerably more limited.

Because we hold that neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public, we find it unnecessary to decide whether executions must be open to the public. While Richmond mandates that criminal trials be open to the public, no court has ruled that videotaping or cameras are required to satisfy this right of access. Instead, courts have universally found that restrictions on videotaping and cameras do not implicate the First Amendment guarantee of public access. [...] Based on the overwhelming weight of existing authority, as well as on our general understanding of First Amendment principles, we hold that the Media Policy banning the use of video cameras and other cameras in the execution chamber does not burden any of New Life's First Amendment rights.

As Akins' filing points out, Judge Laughrey's reliance on a case involving the more limited First Amendment rights afforded to those attending criminal proceedings is misplaced. An open lobby of a police department is simply not comparable to a jury trial or an execution.

In Akins the CPD Lobby was open 24 hours a day, was the designated point where citizens were the file a misconduct complaint/petition the government for a redress of grievances. Contained a “Media Advisory” book on 24 hour arrest reports and information displays and handouts for the public. In addition, it contained a memorial to fallen Officer Molly Bowden. Memorials are designated points where people gather to remember and pay tribute to a particular person or event. Akins assisting Marlon Jordan by documenting his filing of a police misconduct complaint is consistent with the protections of the 1st Amendment. The order of the CPD employee acting pursuant to Chief Burton’s policy that the CPD Lobby was not a traditional public forum and filming not permitted is insufficient to change the nature of this traditional public forum into something else and violated Akins 1st Amendment Rights in the end of the summer 2011.

Citing the First Circuit's Glik decision, Akins points out that the filming of public officials in public areas is protected by the First Amendment.

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.

Filming another citizen filing a complaint may encroach on that person's privacy, but no more so than standing within hearing distance would. If the police were concerned about the complainant's privacy, officers always had the option to handle this interaction somewhere other than the lobby, rather than tell Akins to stop recording. The lobby of a police station is one of the only areas of the building truly open to the public and what happens within that area should be treated no differently than anything happening outside the door on the sidewalk. Applying a decision that invokes the more limited access afforded to attendees of criminal proceedings does no favors to the First Amendment and encourages public officials to deter citizens from recording in public areas.

If the Eighth Circuit Court does agree to review this case, it will be digging into a large number of potential rights violations. Whether or not it will find time to reaffirm citizens' right to record public officials in public places remains to be seen. It seems unlikely that the Appeals Court will overturn any immunity granted to the defendants, but it hopefully may take a second look at what appears to be an erroneous -- and potentially-damaging -- First Amendment conclusion.

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Filed Under: 8th circuit, first amendment, free speech, matt akins, polic, public areas, recording