Yell Out Criticism -- "Hey, Dude, Go A Little Lighter On The Donuts!" -- As You Hit Record, So Cop Can't Arrest You For Videotaping Him
Disturbingly, a federal court just ruled that there's no right to record police, except if your recording is accompanied by "challenge or criticism."
(I suspect my suggestion in the header won't actually fly, but please, any lawyers dropping by, please weigh in.)
I don't like unnecessary rudeness or unsolicited advice, but I really, really don't like violations of our civil liberties or people who stand up for them being jailed, fined, or worse.
You stand up for our civil liberties by recording cops and other government employees in action, both to log what they do and as evidence of any misconduct.
At The Freeman, Eugene Volokh writes about the recent Fields v. City of Philadelphia court decision -- which I hope will be swiftly overturned. But here's what it says:
There is no constitutional right to videorecord police, the court says, when the act of recording is unaccompanied by "challenge or criticism" of the police conduct. (The court doesn't decide whether there would be such a right if the challenge or criticism were present.)Therefore, the court held, simply "photograph[ing] approximately twenty police officers standing outside a home hosting a party" and "carr[ying] a camera" to a public protest to videotape "interaction between police and civilians during civil disobedience or protests" wasn't protected by the First Amendment.
I don't think that's right, though. Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it's not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.
Eugene's take on this:
Your being able to spend money to express your views is protected even when you don't say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren't actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that takes place later). The same should be true of your recording events in public places.
He suspects this will be overturned.
Here's a quote from the court's conclusion:
We have not found, and the experienced counsel have not cited, any case in the Supreme Court or this Circuit finding citizens have a First Amendment right to record police conduct without any stated purpose of being critical of the government. Absent any authority from the Supreme Court or our Court of Appeals, we decline to create a new First Amendment right for citizens to photograph officers when they have no expressive purpose such as challenging police actions. The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims.
Huge chill on free speech. Who can afford to be "Oh, no probski!" about being arrested or having "excessive force" applied?
It's interesting especially since courts have long ruled that police have the authority to record the public doings of citizens even when no criminal activity is suspected. I wonder what this court will say about the now-near-ubiquitous security cams that record everything that happens in their surveillance area. If I have a security cam on the front of my house, and it records some police confrontation that happens out in the street in its field of view, have I violated the law? Apparently.
Cousin Dave at February 26, 2016 9:28 AM
I hope it will be swiftly overturned as well. Bizarre and troubling.
Kevin at February 26, 2016 10:13 AM
I thought I had read of an earlier decision by an appellate court that recording public officials was not illegal. Anyone remember that situation?
Jay at February 26, 2016 11:17 AM
So how exactly do you prove that your purpose is to criticize the government ahead of time? As the cop comes over and takes your camera, you have no proof short of working for a media outlet that you have "intentions", which are internal to your mind.
Craig Loehle at February 26, 2016 12:21 PM
Oregon just recently added to the law to make it clearly state it is legal to record the police.
BunnyGirl at February 26, 2016 12:21 PM
So, a rookie judge is liable to make errors in...wait for it...judgment:
https://photographyisnotacrime.com/2016/02/22/rookie-federal-judge-in-pennsylvania-rules-citizens-do-not-have-first-amendment-right-to-record-police/
I R A Darth Aggie at February 26, 2016 1:18 PM
So how exactly do you prove that your purpose is to criticize the government ahead of time?
Use your cell phone
Use https://www.periscope.tv/
When the cop comes over and threatens you with arrest, tell him to smile and wave to your 5 followers who are viewing your live broadcast, and then ask him he'd mind answering some questions.
You know, like a journalist might do...
I R A Darth Aggie at February 26, 2016 1:22 PM
There are no such things as a "Constitutional Right" or "Constitutional Rights".
Period.
The Constitution does not and can not confer rights to anyone. The People (and that includes anyone in the world) have Natural Rights by virtue of birth, and not by virtue of a government or a constitution.
Alexander Hamiliton in Federalist 84 warned that the Bill of Rights would be a mistake and dangerous to the People:
"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."
Call out anyone who uses the phrases "Constitutional Right" or "Constitutional Rights" and demand they show you where in the Constitution rights are conferred.
con·fer/kənˈfər/verb
grant or bestow (a title, degree, benefit, or right).
Jay J. Hector at February 27, 2016 11:51 AM
This is bizarre. Once someone is in the public, you can video record them all you want. There is no right to privacy in the general public.
Patrick at February 28, 2016 4:59 AM
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