Some notable passages from today’s 3rd Circuit opinion in Fields v. City of Philadelphia, holding that there is a First Amendment right to record police officers in public, written by Circuit Judge Thomas L. Ambro:
the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. […] This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, see Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this protection to have meaning the Amendment must also protect the act of creating that material.
To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.
We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in public places these restrictions are restrained.
Having decided the existence of this First Amendment right, we now turn to whether the officers are entitled to qualified immunity. We conclude they are.
That last bit is primarily, though not solely, because the 3rd Circuit had not decided such a case as this yet when the incidents in question occurred. Now that the existence of the right to record police in public is “clearly established,” the next time a similar case shows up in court, qualified immunity may be off the table. Hopefully that potential liability will discourage Philadelphia officers from retaliating in the future.
- The U.S. District Court for the Eastern District of Pennsylvania’s 2016 opinion (overturned by this one)
- ACLU page
- Cato Institute page
- Electronic Frontier Foundation page
- DOJ brief in support of plaintiffs (PDF)
I’ve included a link to the PDF, and embedded the opinion, below.