Obama Appointed Federal Judge Rules Americans Have No First Amendment Right to Film Police

Carlos Miller
PINAC
Feb. 23, 2016

In an embarrassing Constitutional setback for the American judicial system, a federal judge in Pennsylvania ruled on Friday that citizens do not have the First Amendment right to record police in public.

That is, unless those citizens are telling the cops to go fuck themselves.

Then it's protected speech.

That's the twisted logic coming from Judge Mark A. Kearney, a federal judge for the United States District Court for the Eastern District of Pennsylvania, who's been on the bench a little more than a year.

Prior to that, he was a shareholder in a high-profile law firm in Philadelphia specializing in commercial litigation, so perhaps he is not fully versed in First Amendment law, which is why he dismissed a First Amendment retaliation claim from two citizens who were arrested by Philadelphia police on two separate occasions for recording officers in public.

The two cases were consolidated to determine "whether photographing or filming police on our portable devices without challenging police is expressive conduct protected by the First Amendment."

In other words, had either of these citizens told the cops to go fuck themselves as they recorded or took photos, then their actions would have been protected under the First Amendment in Kearney's view.

Of course, knowing Philadelphia police, that would probably have earned them a beating in addition to the usual First Amendment abuses practiced by the department.

In fact, the two suits were part of five similar suits filed by the ACLU of Pennsylvania against the Philadelphia Police Department in September 2014, two months after Kearney had been nominated to the federal bench by the president.

Thanks, Obama.

In the first case, a woman named Amanda Geraci tried to record Philadelphia police arresting a citizen during an anti-fracking protest on September 12, 2012 when an officer charged at her her in a full run, thrusting her forearm against Geraci's neck while shoving her against a glass as other cops surrounded them to prevent anybody else from recording.

In the second case, a Northwestern University student named Richard Fields was strolling down the street on September 13, 2013 when he came across a group of Philadelphia police officers standing outside a home hosting a party and figured it would make an interesting photo, but ended up handcuffed, detained and arrested by a cop named Sisca, who asked, "do you like taking pictures of grown men?"

Sisca, who first name is probably Joseph, ordered him to leave, but Fields asserted his First Amendment right and was charged with obstructing the highway, even though he was on the sidewalk the entire time.

In making his decision, Kearney viewed the First Amendment through the most narrowest of lenses, focusing on the freedom of speech portion while completely ignoring the freedom of the press portion.

Here are excerpts from his 21-page decision, which can be read in its entirety here:

We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct

Fields' and Geraci's alleged "constitutionally protected conduct" consists of observing and photographing, or making a record of, police activity in a public forum. 27 Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. 28 Because we find this issue dispositive on all of Plaintiffs' First Amendment retaliation claims, we first address whether Fields' and Geraci's conduct is constitutionally protected activity under prevailing precedent.

We analyze Fields' and Geraci's conduct mindful of the Supreme Court's admonition "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' …. " 29 "[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. "30 "Expressive conduct exists where 'an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it. "'31 "[T]his is a fact-sensitive, context-dependent inquiry, and … the putative speaker bears the burden of proving that his or her conduct is expressive." 32

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.

The way he words it, the only way the recording of police in public can be protected is if the person holding the camera partakes in "expressive conduct."

That could perhaps be dancing as Philly Law Blog writes:

Apparently if you want to film the police, you have to yell at them, criticize their conduct, or perhaps even do a little jig. The court held that there is no First Amendment right to merely recording, because that's observation and not "speech.

How does this affect the public practically? I guess if you want to film the police, also make sure to maybe yell at them too. Perhaps do a little jig while you're filming, or sing a Taylor Swift song.

Merely filming the police without something more is not protected First Amendment speech in Pennsylvania.