First Amendment
- 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)
3rd Circuit in Philadelphia case: 1st Amendment protects recording police in public
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.
and
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.
but
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.
and
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.
Related Links
I’ve included a link to the PDF, and embedded the opinion, below.
https://assets.documentcloud.org/documents/3890443/Document.pdf
[scribd id=353175253 key=key-wgEldZXf3JOlCRTha0pe mode=scroll]
EFF will represent targets of copyright troll Prenda Law
EFF will represent targets of copyright troll Prenda Law
Copyright trolls sue lots of people to extract settlements from those who can’t afford to litigate in the face of potentially massive statutory damages. Their claims are often facially lacking in merit and instead leverage intimidation and poorly-constructed federal copyright damages provisions to bankrupt people for profit.
I’m impressed by Wordpress’ parent company, Automattic, who refused to respond to the troll’s fishing expedition. And it’s good to see EFF lend a hand here in the form of representation, but eventually Congress needs to step in and fix the statutory damages provisions that incentivize copyright trolls to this vile abuse of our legal system in the first place.
For some great background and reporting on trolls and those who fight them, read this Ars Technica piece by Timothy B. Lee.
Judge blocks California’s new ban on anonymity for sex offender
Judge blocks California’s new ban on anonymity for sex offender
This one is worth watching. With regard to blogs and forums, particularly, there’s a strong analogy with letter-writing and other modes of communication with the “outside” that are typically allowed.
The plaintiffs, two registered California sex offenders, argue that prohibiting their anonymous speech online “even if it pertains to news, politics, and professional activity, and could not possibly be used to commit a crime” violates the First Amendment.
This looks similar to a case I wrote about in October, where a Nebraska federal court tossed a similar law in that state.
I don’t want sex offenders to have access to children online. But these measures do go too far. Maybe registered sex offenders should be required to access the internet via special software that, while it allows anonymity, prevents access to services and sites that reach children.
At the end of the day, the truth is that these laws apply to people who have otherwise served their time, who are “free” in the legal sense, and who no longer labor under the curtailed liberties of institutional imprisonment. That imprisonment is meant to punish them, but also to keep the public safe, to prevent them from moving through public crowds anonymously.
If we have released them from prison, allowing that physical anonymity once again, by what logic do we eliminate their digital anonymity?
I don’t have an answer, but I suspect the issue will reach the Supreme Court sooner rather than later.
Nebraska court strikes down restrictions on internet use for sex offenders on free speech grounds
Nebraska court strikes down restrictions on internet use for sex offenders on free speech grounds
Professor David Post of Temple Law served as an expert for the plaintiffs — yes, sex offenders — in this case. His focus, as he points out in his Volokh Conspiracy post, was on the overbroad nature of the statute barring internet use by sex offenders, which he believes, and the United States District Court for the District of Nebraska agreed, was beyond what the First Amendment allows.
Your first thought might be “who cares about a sex offender’s free speech rights?”
The answer, of course, is that the Constitution cares, particularly after they have served prison time and otherwise complied with constitutionally sound penalties for their crimes.
The core of the court’s holding lies in the following passage:
The ban not only restricts the exchange of text between adults; it also restricts the exchange of oral and video communication between adults. Moreover, the ban potentially restricts the targeted offenders from communicating with hundreds of millions and perhaps billions of adults and their companies despite the fact that the communication has nothing whatsoever to do with minors.1
This looks to me like a well-meaning statute, meant to keep sex offenders away from kids online, that was very poorly drafted. You could achieve the desired goal using far narrower provisions. I hope someone proposes a corrected statute to that effect.