Fields/Geraci v. Philadelphia: No right to record police in Pennsylvania

The Eastern District of Pennsylvania recently released a decision in the combined cases of Fields v. City of Philadelphia and Geraci v. City of Philadelphia.  Both of these cases involved the constitutionality of recording police officers performing their duties in public places.  At the end of the analysis, the Court held that there is no First Amendment right to record police officers without some form of criticism involved.  The decision is unfortunately dangerous on both a practical and a theoretical level.

In order to understand the context in which the decision was made, it is necessary to understand the parameters of the First Amendment, at least as defined by the various federal appeals courts, including the U.S. Supreme Court.  In essence, the First Amendment’s protection of speech (only one of the various rights protected in that Amendment) also applies to “expressive conduct.”

Expressive conduct is activity that can reasonably be viewed as promoting an idea or expression.  Thus, flag-burning, picketing, the wearing of an armband, etc. can be deemed “expressive conduct” because they intend to relay a political point of view through conduct.  Because the plaintiffs here did not issue verbal political statements, the Court used the “expressive conduct” analysis.

In Fields and Geraci, the Court found that there was no expressive conduct.  In the Fields case, the plaintiff was walking on the sidewalk, observed a large group of police officers, and thought it “would make a great picture.”  He stopped to take the picture, an officer approached him and asked if he like taking pictures of grown men, and then told him he was blocking a public passage and needed to move.  Fields stated he was within his rights to be where he was, and he was arrested.

In the Geraci case, the plaintiff was attending a protest against fracking in order to observe the interactions between police and protestors.  She was, in fact, an activist and her specific reason for being at the event was to observe and record activities for her organization.  She apparently wore a pink bracelet identifying herself as a member of the organization.  When a police officer began to arrest a protestor, Geraci moved closer (but not in a distance to interfere), when the officer pushed her against a tree and held her there so she could not continue recording.

To reach its decision, the Court ultimately sifted through a series of cases from the Third Circuit (the federal appeals court for Pennsylvania, Delaware, and New Jersey).  The legal research found no evidence of a right to freely record police officers; the most the Third Circuit had to say up to this point was that an individual “may” have the right, so long as the recording is accompanied by a context indicating that it is “expressive conduct.”  The Court found that merely observing cannot be deemed “expressive conduct.”  And because the Court determined that the plaintiffs “are not members of the press,” they had no First Amendment right to record without an accompanying protest or challenge.

This holding is dangerous for two reasons.

First, the Court held that in order to be protected by the First Amendment, one’s recording of police must be accompanied by an active protest of police actions.  This, again, has two major problems: (a) if the police have engaged in inappropriate conduct prior to the recording, the individual has no mechanism to show the inappropriate conduct, short of a police report and the individual’s own testimony; and (b) given that both individuals claim that there was a significant use of force against them (and Fields was actually arrested) for recording without protest, one can imagine the risk an individual takes to his person and liberty should he (or she) attempt to record police activity while actively protesting the individual’s own treatment.

Constitutionally speaking, this is a dangerous ruling, as well.  The District Court found that the plaintiffs were not members of the press.  Notably, the Court failed to explain its decision here and offered no reasons why someone taking interesting photos of city activities and a political activist specifically seeking to observe and record police activities are not to be considered journalists.  The Court noted the “instant image sharing technology” available to share the images recorded by the plaintiffs, so that presumably it assumed that the plaintiffs had at least some intention of sharing the recordings.

We have already seen attempts by the government to determine who, precisely, is considered a journalist.  The First Amendment protects the freedom of the press, in addition to the freedom of speech, assembly, petition, and religion.  These rights protect the individual against encroachments by the government.  It is exceedingly dangerous, then, to allow the entity against whom we are protected to define to whom the protections apply.  That would be equivalent to allowing the individual to determine his/her own tax deductions, or a criminal suspect to determine which sections of the Crimes Code applies to him.

To cite another, perhaps more important, example: prior to the American Revolution, the primary media was newspapers and pamphlets.  In the 1760’s, after the rather expensive French and Indian War, the British government began placing taxes on various objects and activities.  To state their objections to this and other recent policies, the American colonists ran newspaper editorials critical of the British Parliament and individual officials.  To curb this, the British government exacted a tax on newspapers (and some other legal documents).  This action, called the Stamp Act, was one of the major contributing actions (among a series of impositions by the British) that led to the American Revolution.  Thus, when forming the Bill of Rights, the drafters were careful to include the freedom of speech and of the press as one of the first rights (second only to religion) protected against government encroachment.

By defining who the press is, the government limits the protections of the First Amendment perhaps more than the initial Stamp Act did.  Today, taxes and fees exist at every level of conducting business, a fact the colonists would likely abhor, but is fully accepted today; here, however, the government actually defines who may receive constitutional protection and who may not.  The manner in which the Court matter-of-factly states that the plaintiffs were not members of the press is certainly disturbing; it is apparently so evident to the Court that no explanation was needed.  (As an aside, this is a different argument than requiring press passes into a press conference at an official press conference – while the government may decide to whom its officials will personally speak, it cannot prevent another individuals from reporting on what was said).

Finally, the arguments of several other federal appeals courts seem more convincing than the Eastern District’s or the Third Circuit’s.  The First Circuit (Maine, New Hampshire, Massachusetts, and Rhode Island), Eleventh Circuit (Georgia, Florida, Alabama), Seventh Circuit (Illinois, Indiana, Wisconsin), and Ninth Circuit (California, Nevada, Arizona, Oregon, Idaho, Washington, Montana, and Alaska), and , – in total, 18 states* –  all recognize a right to record police in public, so long as there is no interference with the police performing their duties.  These Circuits recognize that observation and recording serves an important function in the national conversation, in preventing corruption, and in promoting free discussion of ideas, in addition to the news gathering function (which they do not necessarily limit to the “authorized” press).  In the view of the Eleventh Circuit, “the First Amendment protects the right to gather information about what public officials do on public property.”

While the First Amendment claims were unfortunately dismissed, the Fourth Amendment unreasonable search and seizure, false arrest, and excessive force claims will ultimately go to trial.  The search and seizure claims may very well be affected by this decision, however, as officers (and other public officials) have qualified legal immunity against liability if the actions were not clearly unconstitutional at the time.  If there was no right to record police and Fields refused a police command, then perhaps it was “reasonable,” in the legal sense, for the officer to seize his phone and search it.  I certainly hope that is not the case, but I have seen more loosely connected logic in grants of qualified immunity.

The attorneys for the plaintiffs have indicated that they will appeal this decision to the Third Circuit.  One hopes that that court will recognize the right to record public officials in the course of their public duties, regardless of who is doing the recording.

* Other states may recognize the right individually.  This is merely to show states in which the federal courts have stated there is a right to record police under the U.S. Constitution.  New Jersey, for example, has held that there is a right to record police officers, essentially adopting the First Circuit’s reasoning.

**This case currently applies only within the boundaries of the Eastern District of Pennsylvania and, as a district court case, is binding on the parties.  However, the case may be used as persuasive authority in any legal proceeding.  This means that while not binding on persons who are not parties to the case, Thompson Law Offices, LLC would not advise recording police officers in Pennsylvania at the present time.