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Plaintiffs had no First Amendment right to take cellphone video of police, federal judge rules

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A federal judge in Philadelphia has ruled that citizens don’t have a First Amendment right to take cellphone videos of police unless they are challenging or criticizing the police conduct.

U.S. District Judge Mark Kearney ruled (PDF) on Feb. 19 in consolidated cases involving Richard Fields and Amanda Geraci, the Legal Intelligencer (sub. req.) reports. Fields, a Temple University student, took a cellphone photo of about 20 police officers standing outside a house party because he thought it would be an interesting picture. Geraci, a trained legal observer, tried to move closer to see and possibly record an arrest during a protest of hydraulic fracturing.

An officer handcuffed Fields, searched his cellphone before returning it, and cited him for obstructing the highway and public passages, Fields says. Geraci says an officer physically restrained her to prevent her from recording the arrest. Both sued for alleged First and Fourth Amendment violations.

Kearney said Fields and Geraci would have to show their behavior was “expressive conduct” to support a First Amendment claim. Neither plaintiff could meet that burden because neither told the police why they wanted to capture the images, Kearney said. “The conduct must be direct and expressive; we cannot be left guessing as to the ‘expression’ intended by the conduct,” Kearney wrote.

“Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is ‘sufficiently imbued with elements of communication’ to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.”

Kearney allowed Fourth Amendment claims by Fields and Geraci. “The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims,” Kearney said.

Updated on Feb. 25 to correct two typos.