This October, former police officer Michael Slager will stand trial for murder in the shooting death of Walter Scott following a daytime traffic stop last year in North Charleston, South Carolina. The critical evidence in the case is a smartphone video captured by a then 23-year-old barber named Feidin Santana as he was walking to work. The video shows Slager shooting the unarmed Scott several times in the back. Santana took the video despite another officer telling him to stop.

Santana’s video is just one example of a citizen using a smartphone to capture alleged police misconduct. Ramsey Orta took the infamous “I can’t breathe” video of Eric Garner being placed in a chokehold by a New York City police officer shortly before Garner’s death. The twin incidents conjure up memories of the 1991 video captured by George Holliday of Los Angeles police officers beating Rodney King.

And in a different but dangerous twist, an April 2015 citizen video shows a burly U.S. marshal in South Gate, California violently smash to the ground the smartphone of another citizen who was simply recording the marshals while standing on a public sidewalk.

The power of smartphones to expose abuses of power by law enforcement officials raises an important question that, as a free speech scholar and director of the Marion B. Brechner First Amendment Project, I’ve studied: Do citizens have a First Amendment right to record police doing their jobs in public places, such as streets, sidewalks and parks?

The U.S. Supreme Court has never answered this question. It has been left to lower courts nationwide to sort out for themselves if such a right to film police exists.

Rejection in Pennsylvania

Last month, a federal court in Philadelphia took up the question. District Judge Mark Kearney determined the answer is no—there is no right to film cops, “absent any criticism or challenge to police conduct.” Writing the opinion in Fields v. City of Philadelphia, Kearney reasoned that Pennsylvania “does not recognize a First Amendment right to observe and record without some form of expressive conduct” and that “photographing police is not, as a matter of law, expressive activity.”

In other words, Kearney is arguing that the act of pushing a record button and then holding a phone up are merely conduct, not speech. This renders the First Amendment irrelevant.

To constitute speech, according to Kearney, the person recording must do so with the specific intent of criticizing or challenging the police conduct being recorded. That was not the case in Fields.

Kearney determined that one of the citizens involved only “wanted to observe” a public protest against hydraulic fracturing, not to criticize or challenge to the police monitoring it. The judge also found that the other citizen, a Temple University student who took a picture of about 20 police officers standing outside a home hosting a party, did so simply because it was “an ‘interesting’ and ‘cool’ scene.”

In other words, why someone records cops is critical, in Kearney’s view, in determining if the First Amendment is involved.

Other courts see it differently

The decision in Fields, however, is somewhat of an outlier.

A 2015 nationwide study indicates that more courts—but certainly not all, as Fields indicates—are recognizing a limited First Amendment right to record police doing their jobs in public venues, regardless of the intent of the person recording.

For example, the U.S. Court of Appeals for the First Circuit, which includes the states of Maine, Massachusetts, New Hampshire and Rhode Island, concluded in 2014 in Gericke v. Begin that people have a First Amendment right to record officers conducting traffic stops, subject to “reasonable restrictions.”

The problem, of course, is determining what constitutes a reasonable restriction. Reasonableness is a slippery concept. The First Circuit suggested that safety concerns might justify restricting the right to record. The court also was clear that a right to record is not a right to interfere.

In a key passage, it explained:

The circumstances of some traffic stops, particularly when the detained individual is armed, might justify a safety measure—for example, a command that bystanders disperse—that would incidentally impact an individual’s exercise of the First Amendment right to film… . However, a police order that is specifically directed at the First Amendment right to film police performing their duties in public may be constitutionally imposed only if the officer can reasonably conclude that the filming itself is interfering, or is about to interfere, with his duties.

The First Circuit is not alone in recognizing such a qualified or limited First Amendment right to record images of police in public. The U.S. Court of Appeals for the Eleventh Circuit, which sweeps up Florida, Georgia and Alabama, also found that:

the First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.

Like the First Circuit, the Eleventh Circuit also considers this right to be “subject to reasonable time, manner and place restrictions.”

Additionally, the Ninth Circuit—the nation’s largest, encompassing nine western states—recognized in Fordyce v. City of Seattle as a “First Amendment right to film matters of public interest,” including police. A federal district court in New York City in 2015 acknowledged a right to film police subject to reasonable restrictions, yet the Second Circuit Court of Appeals, which includes New York, Connecticut and Vermont, has not endorsed this right.

Viewed collectively, this growing spate of authority confirms that Judge Kearney’s decision in Fields v. City of Philadelphia is an outlier and, in my view, incorrect. Police officers are government officials and public employees. They work for the very people who want to record their actions. And when citizens record police in public places—locations where cops have no reasonable expectation of privacy, like streets and parks —those citizens are acting as watchdogs on possible government abuses of power.

Feidin Santana’s video of officer Slager shooting Walter Scott in the back is all the proof needed of the importance of the watchdog role. A simple intent to monitor and observe, not to challenge or criticize, is all that should matter in determining if First Amendment rights are at stake.

Ultimately, the Supreme Court must hear a right-to-record case to make it clear that in every jurisdiction there is a First Amendment right to film police performing duties in public. In doing so, it also should articulate the precise factors that make a restriction on this right reasonable.

The ACLU of Pennsylvania has vowed to appeal Fields before the U.S. Court of Appeals for the Third Circuit. The case thus has a long way to go before it might ever reach the nation’s high court, which hears only about 70 cases a year, but it could well provide an ideal scenario to resolve the issue.

The Conversation

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