We’ve had incidents where people have videotaped us and it requires unbelievable restraint. Typically during times where things can be a little chaotic. We really have to convey we’re living in a different environment now where police action is scrutinized and a lot of video is surfacing. We simply tell our officers to assume they’re being recorded out in public at all times. — South Gate Police Capt. Darren Arakawa (L.A. Times, April 21, 2015)
We live in technological times, in times when the means of communications are restructuring the relationship between citizen and State. Part of that new technology is the cell phone and its ability to capture reality with video accuracy and then transmit its recorded images to the world within seconds. In the process, citizens have become journalists of sorts as they convey the news of the moment to their fellow citizens and others. From Ferguson to Baltimore, eyes are opening as never before as the conduct of police is cast in bold relief. What was once routinely concealed is now routinely revealed. Predictably, there have been attempts to squelch (by force and by law) these new checks on police power — transparency breeds contempt. By the same token, the new technology can also turn its lens on acts of lawlessness, as the events in Baltimore are revealing. And as you will see below in the item concerning a recent incident at the Albany Airport, sometimes there are videos of police actually defending people’s claims of their First Amendment rights.
It is a fact: Visual communication is revolutionizing our world, both in cultural and in constitutional ways. The public forum is becoming public in ways heretofore unimagined. Every street corner, every ally, and every open space is now not only a place wherein to be, but also a place wherein to be watched. True, it may sometimes smack of an Orwellian world, but it is likewise a world in which the acts of Big Brother can be scrutinized like never before. Hence, just as technology can enhance governmental power, so too can it restrain it.
How does the First Amendment figure into all of this? That is the question. Before turning to it, however, it is well to consider what happened recently to a citizen in Southern California as she attempted to record the events in her own neighborhood.
* * * *
Ms. Paez & police
A little over a week ago something disturbing happened in South Gate, California — and true to the times, it was captured on cell-phone video. It happened in a neighborhood where a “tactical unit” of police from different departments sough to arrest some members of an alleged bike gang, purportedly on outstanding warrants. As all of this was taking place in open daylight — replete with heavily armed police and what have you — Beatriz Paez was recording portions of it on her cell phone. The woman appeared to be a few houses or more away from where all of this was occurring and did not otherwise seem to be interfering with the police in any way.
Meanwhile, an officer directed an armed U.S. Marshall towards the woman with the cell phone. The marshall approached Ms. Paez, who continued to record the events. Suddenly, he lunged towards her, grabbed her cell phone, and then threw it to the ground and kicked it.
You’re making me feel unsafe. I have a right to be here. — Beatriz Paez
Fate being what it is, the scene was captured on video, apparently by another citizen with a cell phone camera.
→ See also, March 7, 2015 video-recorded incident in Santa Barbara, California, and March 24, 2015 video-recorded incident in Dillon, Montana.
Ms. Beatriz Paez
What to make of this? “The officer’s conduct is a blatant and deliberate violation of the Constitution and his duties as an officer to abide by the law,” is what Hector Villagra, executive director of the American Civil Liberties Union of Southern California, told a Los Angeles Times reporter.
A “blatant . . . violation of the Constitution”? While I agree that blanket prohibitions and the like on citizen recordings of police actions in public violate the free speech provisions of the federal and many state constitutions, among other laws, I nonetheless thought I would look into the matter. Here is what I found:
Summary of Federal Case Law
5 federal cases out of four different circuits have sustained a First Amendment claim to record police activities occurring in public
3 federal cases out of two different circuits have denied a First Amendment claim to record police activities occurring in public, though two of those cases involved unpublished opinions.
8 federal district courts out of four different federal circuits have denied a First Amendment claim to record police activities occurring in public.
(see cases listed below)
When police officers seize materials in order to suppress the distribution of information critical of their actions, “the seizure clearly contravene[s] the most elemental tenets of First Amendment law.” Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (source: here)
Limitations on Citizens’ Videoing Police: Legitimate & Otherwise
(credit: City Watch)
In all of this certain limitations might come into play, limitations that could confine the reach of an right, constitutional, statutory, or otherwise. Such limitations would include the following:
Time, place and manner restrictions (see e.g., Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010), but “peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties” is conduct “not reasonably subject to limitation.” Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011);
Any behavior that might reasonably be viewed as interfering with the lawful activity of police officials;
And then there are certain consent laws requiring individuals to obtain consent before recording anyone, even police engaged in public activities (such laws as applied to police officials raise First Amendment issues as evidenced by the 7th Circuit Alvarez ruling listed below). Moreover, state wiretap statutes are often used when citizens secretly record;
Application of the fighting words doctrine (but see: Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974) (Powell, J. concurring): “a properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'”), and R.A.V. v. City of St. Paul, 505 U.S. 377, 428 (1992) (Stevens, J., concurring) (“we have consistently construed the ‘fighting words’ exception … narrowly”).
Disorderly conduct (but see: Gregory v. City of Chicago, 394 U.S. 111, 120 (1969) (“To let a policeman’s command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws.”);
Securing the area rationale;
Suspicious behavior rationale (but see: A person “whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets,” and may not be arrested “‘at the whim of any police officer.’” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965)).
Recording Case Now Being Litigated in Maryland
→ Note: Many of the above issues are currently being litigated in Garcia v. Montgomery County (Case 8:12-cv-03592-TDC, U.S. Dist. Ct., MD), and Statement of Interest of Department of Justice supporting First Amendment claims. See here re the complaint filed by Robert Corn-Revere.
→ See also May 14, 2012 Statement by Department of Justice re Sharp v. Baltimore City Police Department, et. al. (“[Police] policies should affirmatively set forth the contours of individuals’ First Amendment right to observe and record police officers engaged in the public discharge of their duties. Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.”).
State law ought to make clear that it is illegal for an officer to confiscate a camera or phone — and certainly to destroy it — or to arrest people simply for recording police action in public places. — Editorial, L.A. Times, April 23, 2015
Statutory Law. It would, of course, be short-sighted to limit one’s focus to constitutional limitations. That is, the legality of police conduct in this area could also depend on:
The precise scope of statutory authorization of police conduct in this area, and
The character and extent of statutory limitations on police conduct in this area
→ See here re proposed California legislation creating a public right to record.
Officer Protects Assertion of 1-A Rights
“Obviously this is your constituional right.” — Deputy Sheriff Stan Lenic
When an airport authority at Albany International Airport tried repeatedly to prevent a young woman from InfoWars from distributing flyers informing passengers of their right to opt out of body scanning screening, a local sheriff’s officer came to their defense. It is all captured on video by documentary filmmaker Jason Bermas — it’s a must see!
→ Compare International Society for Krishna Consciousness v. Lee (1992) (no 1-A right to solicit for money in public airports)
Police Policies & Training Programs
Boston Police Department training video re what citizens are allowed to record under Massachusetts’ wiretap statute.
Luke Broadwater, “New city police policy says public has right to film officers,” Baltimore Sun, March 12, 2014 (Baltimore Police Policy here)
Montgomery County, MD, Police Policy, “Citizen Videotaping Interactions“
I am calling on incoming Atty. Gen. Loretta Lynch to order a Justice Department investigation of the incident and to make sure that all law enforcement officers are trained to respect the right of citizens to videotape them. — Congresswoman Janice Hahn (April 26, 2015)
Lawsuits Against Municipalities: Damages and/or Attorneys’ Fees
Danielle Keeton-Olsen, “Recent settlement in suit over arrest for recording police follows growing trend,” Reporters Committee for Freedom of the Press, June 16, 2014: “The town of Weare, New Hampshire, settled a lawsuit last week for $57,500 with a woman arrested for videotaping a police officer, adding to the growing list of settlements stemming from police officers’ restriction of video and audio recordings in public places. In Gericke v. Begin, the U.S. Court of Appeals in Boston (1st Cir.) upheld a lower court opinion that Carla Gericke was within her First Amendment rights to record a police officer at a traffic stop.Following that opinion, instead of choosing to continue with the trial, Weare settled the case with Gericke.”
“Other courts have reached similar conclusions. In a U.S. district court case in Maryland, Sharp v. Baltimore City Police Department, police arrested a man taking video, deleted his recordings, and subpoenaed his medical and cell phone records.The court affirmed the plaintiff had a right to make the recording. The court quashed the subpoena and awarded him $25,000 in damages in addition to covering his approximately $220,000 in legal fees.”
“Most recently, in ACLU v. Alvarez, the Seventh Circuit addressed the constitutionality of Illinois’ eavesdropping offense law after the ACLU of Illinois filed a pre-enforcement action against Illinois’ attorney general so its videographers would not be arrested for audio recording police officers in public places.Following that decision, the district court awarded $645,000 to the ACLU, covering attorney fees.”
See Datz v. Suffolk County Police (story here: “On June 8, 2014, the NYCLU announced a settlement approved by Suffolk County Legislature. The settlement required the County Police Department (SCPD) to pay Datz $200,000 and create a Police-Media Relations Committee to address problems between the press and the police department.”) (see settlement here)
Appellate Cases Sustaining a First Amendment Claim
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)
ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012)
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011)
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)
→ Select District Court Cases: See e.g. Lambert v. Polk County, 723 F. Supp. 128, 133 (S.D. Iowa 1989), and Robinson v. Fetterman, 378 F.Supp.2d 534, 541 (E.D. Pa. 2005) (finding “no doubt” that First Amendment protected plaintiff who videotaped police officers, as “[v]ideo-taping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence”), and Channel 10, Inc. v. Gunnarson, 337 F.Supp. 634, 638 (D. Minn. 1972) (“employees of the news media have a right to be in public places . . . to gather information, photographically or otherwise.”).
Appellate Cases Denying a First Amendment Claim
True Blue Auctions v. Foster, 528 F. App’x 190 (3rd. Cir. 2013) (unpublished)
Kelly v. Borough of Carlisle, 622 F.3d 248 (3rd Cir. 2010)
Szymecki v. Houck, 353 Fed. Appx. 852 (4th Cir. 2009) (unpublished)
→ NB: There are also two federal district court cases out of the 10th Circuit, two out of the 2nd Circuit, two out of the 3rd Circuit, and one out of the 6th Circuit in which those courts denied a First Amendment claim. See e.g., Snyder v. Daugherty, 899 F. Supp. 2d 391, 413-14, (W.D. Pa. 2012) (“There is no clearly established, “unfettered” constitutional right, in generalized terms, under the First, Fourth, or any other Amendment, to record police officers in the performance of their duties.”)
Selected Scholarly Articles: 2011-2014
Gregory T. Frohman, “What Is and What Should Never Be: Examining the Artificial Circuit ‘Split’ on Citizens Recording Official Police Action,” 64 Case W. Res. L. Rev. 1897 (2014)
Matthew Aulin Crist, Esq., “You Have the Right to Remain Vigilant: Law Enforcement Officers’ Unconstitutional Responses to Being Recorded,” 91 U. Det. Mercy L. Rev. 77 (2014)
Jacqueline G. Waldman, “Prior Restraint and the Police: The First Amendment Right to Disseminate Recordings of Police Behavior,” 2014 U. Ill. L. Rev. 311 (2014)
David Murphy, “‘V.I.P.’ Videographer Intimidation Protection: How the Government Should Protect Citizens Who Videotape the Police,” 43 Seton Hall L. Rev. 319, 326 (2013)
Jesse Harlan Alderman, “Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity,” 33 N. Ill. U. L. Rev. 485 (2013)
Michael Potere, “Who Will Watch the Watchmen?: Citizens Recording Police Conduct,” 106 Nw. U. L. Rev. 273 (2012)
Steven A. Lautt, “Sunlight Is Still the Best Disinfectant: The Case for A First Amendment Right to Record the Police,” 51 Washburn L.J. 349 (2012)
Seth F. Kreimer, “Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record,” 159 U. Pa. L. Rev. 335 (2011)
Marianne F. Kies, “Policing the Police: Freedom of the Press, the Right to Privacy, and Civilian Recordings of Police Activity,” 80 Geo. Wash. L. Rev. 274 (2011)
Jesse Harlan Alderman, “Police Privacy in the Iphone Era?: The Need for Safeguards in State Wiretapping Statutes to Preserve the Civilian’s Right to Record Public Police Activity,” 9 First Amend. L. Rev. 487 (2011)
The Press Photographers Association Weighs In
→ See comments by Mickey H. Osterreicher, General Counsel, National Press Photographers Association, in the following news stories:
Terrence T. McDonald, “Jersey City cop detains man for recording traffic stop,” The Jersey Journal, April 28, 2015
Denise Jewell Gee, “Reaffirming citizen rights to film police,” Buffalo News, April 26, 2015
“Can US agencies balance security and the Constitution?,” WUSA9, April 26, 2015
Additional Source Materials
Eric M. Larsson, Annot., “Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions,” 84 A.L.R.6th 89 (Originally published in 2013)
Sophia Cope, “Police Must Respect the Right of Citizens to Record Them,” Electronic Frontier Foundation, April 16, 2015
Pennsylvania ACLU, “Know Your Rights When Taking Photos and Making Video and Audio Recordings” (2014) (see here for additional informational from National ACLU)
Clay Calvert, “Filming Police in Public Places: A Risky First Amendment Activity for Citizen Journalists,” Huffington Post, June 3, 2014
Evan Bernick & Paul Larkin, “Filming the Watchmen: Why the First Amendment Protects Your Right to Film the Police in Public Places,” Heritage Foundation (June 12, 2014)
Mickey Osterreicher, “Threats To The 1st Amendment Right To Record In Public,” Law360 (June 4, 2014)
Steve Silverman, “7 Rules for Recording Police,” Reason.com, April 5, 2012
Bill Kenworthy, “Photography & the First Amendment,” First Amendment Center, January 1, 2012
ht: Stewart Caton, Anna Endter & Mary Whisner (UW Law Library), and Robert Corn-Revere.
New ACLU Fundraising Letter (“Member Survey”) Omits any Reference to Protecting 1-A Rights
For all of the good work it does in protecting our free speech rights, when it comes to “Workplans” or “Member Surveys” tied to fundraising, the National ACLU seems curiously shy in discussing its First Amendment activities.
Last February I posted a FAN blog on this: “ACLU ‘2015 Workplan’ sets out narrow range of First Amendment Activities.” I then invited Anthony Romero, the group’s Executive Director, to respond. He did, and in the course of that response he identified a variety of First Amendment projects in which the ACLU was actively involved.
Nonetheless, those who draft its fundraising letters continue to overlook First Amendment issues. Latest case in point: the ACLU’s recent “2015 Member Survey” and the accompanying letter signed by Mr. Romero. Nowhere in the course of seven pages dedicated to identifying “key civil liberties issues” is there any reference to the First Amendment, free speech, or censorship. While the Romero letter urges ACLU supporters to make a “generous donation” to support the group’s “Focus,” “Priorities,” and “Strategies,” it is entirely silent when it comes to any explicit reference to free speech freedoms.
Long the leading champion of First Amendment rights, the group has suffered some major funding losses — e.g., the loss of a $22 million annual gift from a single donor. According to a news report filed by Catherine Ho for the Washington Post, the national ACLU has been running in the red for the past five fiscal years.
Despite such funding problems, the National ACLU continues to either ignore or deemphasize First Amendment rights in its fundraising letters related to its “Workplans” and “Member Surveys.” Why?
Forthcoming: Book by Hasen on Campaign Finance Cases & More
Richard L. Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, January 12, 2016) ($32.50 cloth, 256 pp.)
Abstract: Campaign financing is one of today’s most divisive political issues. The left asserts that the electoral process is rife with corruption. The right protests that the real aim of campaign limits is to suppress political activity and protect incumbents. Meanwhile, money flows freely on both sides. In Plutocrats United, Richard Hasen argues that both left and right avoid the key issue of the new Citizens United era: balancing political inequality with free speech.
The Supreme Court has long held that corruption and its appearance are the only reasons to constitutionally restrict campaign funds. Progressives often agree but have a much broader view of corruption. Hasen argues for a new focus and way forward: if the government is to ensure robust political debate, the Supreme Court should allow limits on money in politics to prevent those with great economic power from distorting the political process.
→ Advance Praise: “Plutocrats United will mark Hasen certainly as the dean of this field.” —Lawrence Lessig, author of Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It
→ Professor Hasen will present two chapters of his forthcoming book at Yale’s Third Freedom of Expression Scholars conference on May 2nd and 3rd. The conference is co-sponsored by the Floyd Abrams Institute at Yale Law School.
Prof. Bertrall Ross
New & Forthcoming Scholarly Articles
Bertrall L. Ross II, “Paths of Resistance to Our Imperial First Amendment,” Michigan Law Review (forthcoming 2015)
Josh Blackman, “Collective Liberty,” SSRN (April 27, 2015) (“This paper will be presented at the Floyd Abrams Freedom of Expression Scholars Conference at Yale Law School.”)
Michael Toth, “Out of Balance: Wrong Turns in Public Employee Speech Law,” University of Massachusetts Law Review (forthcoming 2015)
Eslam Shaaban , “Controlling the Other Edge of Social Media, Hate Speech and Terrorism Propaganda,” SSRN (April 7, 2015)
Notable Blog Posts & Commentaries
Eugene Volokh, “Court strikes down law aimed at Mumia Abu-Jamal and similar criminals who speak publicly after being convicted,” Volokh Conspiracy, April 28, 2015
Eugene Volokh, “Printing business has First Amendment and RFRA right to refuse to print gay pride festival T-shirts,” Volokh Conspiracy, April 27, 2015
Ruthann Robson, “Ninth Circuit Upholds Arizona’s Voter Registration Form for Party Preference,” Constitutional Law Prof Blog, April 24, 2015 (case: Arizona Libertarian Party v. Bennett)
Video Flashback: Interview with Tony Lewis (1991)
Brian Lamb Interviews Anthony Lewis re his book Make No Law: A History of Free Speech in America, BookTV, C-SPAN, 1991 (see part 2 here) (recently posted)
→ See also, Ronald Collins Interviews Anthony Lewis re his book Freedom for the Thought That We Hate: A Biography of the First Amendment, BookTV, C-SPAN, Feb. 11, 2008
New YouTube Posts
“Is Free Speech Under Attack in America?,” ReasonTV, April 24, 2015 (Matt Welch, Reason editor-in-chief)
“Nevada Senate Bill 444 is Anti-Free Speech and Anti-Business,” April 26, 2015 (“Nevada Senate Bill 444 will destroy Nevada’s Anti-SLAPP law.”)
“Pamela Geller Free Speech, Brooklyn College,” April 23, 2015 (see also “Brooklyn College Students Shout ‘Free Palestine!’ at Jews after Pamela Geller Speech“)
“The Constitution, Corporations and Free Speech — Constitution Cafe,” April 27, 2015 (“Does our Constitution give corporations the same First Amendment rights to free speech as it does to individual Americans? What would you want our Constitution to say about the rights of corporations to free speech? Those were the questions du jour at our latest Constitution Cafe, held this weekend at the Hodson Boathouse at St. John’s College, Annapolis.”)
News, Op-Eds & Blog Posts
What lesson are we teaching a new generation when we say they can’t discuss a matter that goes to the school’s very integrity? High school is a jumping-off point for being a citizen. Where can they learn a lesson about being in a democracy if they can’t comment on current issues? — Ken Paulson (April 24, 2015) (See Guza & Zapf story below)
Haley Hansen, “Charlie Hebdo event poster spurs debate on censorship,” Minnesota Daily, April 29, 2015
David Harsanyi, “We Believe In Free Speech, But,” The Federalist, April 29, 2015
Eric Owens, “Off-Campus Conservative Women’s Group Under Censorship Pressure From Georgetown U.,” The Daily Caller, April 28, 2015
Krishnadev Calamur, “6 Novelists Withdraw From Event Honoring ‘Charlie Hebdo’ For Free Speech,” The Two-Way, April 27, 2015
James Griffiths, “Anti-censorship technology uses online video games to bypass Chinese internet restrictions,” South China Morning Post, April 27, 2015
Editorial, “Subway speech wars: The MTA vs. the First Amendment,” New York Post, April 25, 2015 (see also similar Daily News editorial here)
Megan Guza & Karen Zapf, “First Amendment experts decry Plum authorities’ warning to students,” TribLive, April 24, 2015
Zoe Tillman, “D.C. Circuit Deals Setback to First Amendment Advocates,” Legal Times, April 24, 2015
Isaac Avilucea, “Judge’s closed-door proceedings may have crossed First Amendment line,” The Trentonian, April 24, 2015
Gene Policinski, “First Amendment: A new world of ‘real video’ holds all of us accountable,” GazetteXtra, April 23, 2015
THE COURT’S 2014-15 FREE EXPRESSION DOCKET
[last updated: 4-27-15]
Review Granted & Cases Argued
Elonis v. United States (argued on 12-1-14)
Williams-Yulee v. The Florida Bar (argued 1-20-15)
Reed v. Town of Gilbert (argued on 1-12-15)
Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)
Berger v. American Civil Liberties Union of North Carolina (license plate case)
Thayer v. City of Worcester
Friedrichs v. California Teachers Association, et al.
Central Radio Co., Inc. v. City of Norfolk
O’Keefe v. Chisholm
Apel v. United States
Dariano v. Morgan Hill Unified School District
The Bronx Household of Faith v. Board of Education of the City of New York
Arneson v. 281 Care Committee
Kagan v. City of New Orleans
ProtectMarriage.com-Yes on 8 v. Bowen
Clayton v. Niska
Pregnancy Care Center of New York v. City of New York
City of Indianapolis, Indiana v. Annex Books, Inc.
Ashley Furniture Industries, Inc. v. United States
Mehanna v. United States
Stop This Insanity Inc Employee Leadership Fund et al v. Federal Election Commission
Vermont Right to Life Committee, et al v. Sorrell
LAST SCHEDULED FAN POST, #57: “Press Group & Others Await Ruling re Release of 1942 Grand Jury Transcripts in Chicago Tribune Case”
NEXT SCHEDULED FAN POST, #59, Wednesday, May 6, 2015