There are two plaintiffs in these cases. One, Richard Fields, is a man arrested for taking a photo of a group of police officers who had gathered outside a private house during a party. The other, Amanda Geraci, is a woman who was apprehended by an officer in retaliation for recording him. This happened while she was attending a protest as a legal observer.

This was a case of first impression for the U.S. Court of Appeals for the 3rd Circuit, so Kearney wasn’t bound by rulings from state courts or other federal circuits. But he still notes them in his opinion. The 3rd Circuit has found that recording police may be protected by the First Amendment.

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Kearney’s opinion goes off the rails when he tries to distinguish these cases from those other rulings. First, in citing other 3rd Circuit cases in which courts did find a right to record the police, he writes:

Because Fields and Geraci do not adduce evidence their conduct may be construed as expression of a belief or criticism of police activity, under governing Supreme Court or Third Circuit precedent we do not find they exercised a constitutionally protected right for which they suffered retaliation. This is fatal to their First Amendment retaliation claim.53 We find 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.

He makes the same point to distinguish these two cases from the rulings by courts in other states and federal circuits. The issue for Kearney is that in the two cases before him, the people arrested were recording the police “without any challenge or criticism.” Therefore, he finds that their recordings weren’t expressive conduct, and therefore aren’t protected by the First Amendment.

To support his position, Kearney unconvincingly compares the act of recording the police without some clear articulation that you’re doing so for the purpose of protest or expression to refusing to move along when a police officer is trying to clear a sidewalk or roadway.

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Judge Yohn’s cogent and exhaustive analysis in Montgomery v. Killingsworth applies a similar test for assessing conduct protected by the First Amendment. As Judge Yohn observed last year, “Peaceful criticism of a police officer performing his duties in a public place is a protected activity under the First Amendment.” Judge Yohn noted, “this protection, however, is not absolute.” Quoting the Supreme Court in Colten v. Kentucky, and as it relates to Fields, Judge Yohn found “conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. “

But merely standing still without giving any indication that you’re expressing yourself is quite a bit different than recording police officers. The very act of pushing record on a video camera or the very act of engaging the shutter on a still camera — these are expressive actions in and of themselves. You’re creating a record of what you see around you. When you start and stop recording, the angle and distance at which you put the camera, how you compose the frame — these are all artistic decisions. And artistic expression is protected by the First Amendment. Fields even said he chose to take a snap of about 20 cops gathered outside a house party because, “It was pretty cool, it was like a mob of them, so I was, like, just take a picture.” It’s hard to see how that isn’t artistic expression.

But Kearney wants more. In order to find that recording or photographing cops is protected by the First Amendment, he needs “some other expressive conduct” in conjunction with the act of recording. But he has that. Geraci, the other plaintiff, was attending a protest. Not only that, she had been legally trained to observe police for signs of misconduct. So her decision to record the police clearly had a purpose, one that even Kearney seems to admit would be protected. His problem seems to be that she didn’t tell the police officers as much. That’s absurd. The whole point of training observers to attend protests or to watch cops in areas where there have been allegations of abuse is to catch bad cops in the act. Loudly announcing yourself and your intentions would defeat the purpose.

Kearney does note court opinions finding that recordings of police by journalists are protected under the freedom of the press provision of the First Amendment because the recordings are part of news-gathering. Kearney dismisses those rulings by noting that neither Geraci or Fields is a member of the press. But what does that mean? Does one have to work for a newspaper to get First Amendment protection to record the police? A TV station? Do you have to at least have a blog? A Twitter account? Geraci was observing police practices at a protest. Why isn’t that considered journalism? Lots of activists have produced important journalism.

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The other troubling thing here is that Kearney’s ruling seems to imply that whether of not the First Amendment applies depends on what the police officers see and know — that you must announce that you’re engaging in constitutionally protected conduct in order for them to refrain from violating your rights I don’t know of any other court ruling that requires journalists to announce their intentions while engaging in journalism. To do so would kill off a lot of investigative journalism. The same goes for most other protected conduct.

But more broadly, it’s a pretty dangerous thing to say that you must explicitly declare your rights in order to have them respected. In both these cases, the plaintiffs were not physically interfering with the police as they photographed or recorded them. It’s difficult to see what public interest is served by allowing the police to apprehend them or to order them to stop. Could an officer demand that you stop looking at him from afar? Could he order you to turn your head as he’s arresting someone? How and why is that any different than demanding that you stop recording him?

Under Kearney’s standard, most of the citizen-shot videos of police abuse and shootings we’ve seen over the past several years would not have been protected by the First Amendment. In the overwhelming majority of these videos, there’s none of the “expressive conduct” Kearney apparently wants to see from the camera-wielder. In many of them, the police officers are never made aware that they’re being recorded. That’s how some of these videos were able to catch the officers lying about the incident in subsequent police reports.

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I suppose you could argue that recording something as noteworthy as a police shooting or an incident of clear brutality would be self-evidently an act of either expression or news-gathering. But judging from his opinion, it’s far from clear that Kearney would make this distinction. It’s also hard to see how he could. It would mean that whether or not your decision to record the police is covered by the First Amendment would be dependent on whether the recording itself captures the police violating someone’s rights or doing something newsworthy. Even the courts often disagree over what is and isn’t a violation of someone’s constitutional rights (this ruling itself is as good an example as any). And “newsworthiness” is of course a highly subjective standard. You could make a strong argument that both of the events in these two cases — an anti-fracking protest and a 20+ officer police response to a house party — are plenty newsworthy.