The issue of filming the police in the course of public duties is one near and dear to many hearts here in New Hampshire. So this decision from the Third Circuit Court of Appeals (Fields v. City of Philadelphia) is worth visiting.
This case involves retaliation. Richard Fields and Amanda Geraci attempted to record Philadelphia police officers carrying out official duties in public and were retaliated against even though the Philadelphia Police Department’s official policies recognized that “[p]rivate individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties.”
No party contested the existence of the First Amendment right. Yet the District Court concluded that neither Plaintiff had engaged in First Amendment activity because the conduct — the act of recording — was not sufficiently expressive. However, this case is not about whether Plaintiffs expressed themselves through conduct. It is whether they have a First Amendment right of access to information about how our public servants operate in public.
Note that last sentence for posterity. “It is whether they have a First Amendment right of access to information about how our public servants operate in public.”
The police get most of the attention from this issue because of all the many and varied sorts of taxpayer funded servants the police have the power to arrest and detain you, even if it is only–as the court points out–as retaliation. Or, to use another chilling word, intimidation.
But the police aren’t the only body of “public servants” with members who try to intimidate or retaliate against you. Those without actual police powers may still too often direct them, an all too frequent occurrence at local gatherings of school boards or selectman.
The message is the same.”Don’t do this.” And it is a message that lives on independent of the law, regardless of the public officials’ knowledge or ignorance.
Towns and cities, armed with lawyers and deep pockets filled with taxpayer dollars consider the act of defending unlawful actions a means to affirm the relationship between themselves and the public. And it is almost always worth the expense of a trip to court (even when they lose) if the threat or the threat of the process dissuades any number of potential observers from engaging in constitutionally protected citizen journalism that might shine a less than flattering light on their actions.
Fields v. City of Philadelphia while decided rightly will do little to change this but we applaud the decision none the less.
Update: Fixed text formatting after quoting and removed duplicate text.
