Free Speech – It’s More Than Just Words
The right to speak freely is the right to live freely. It is a fundamental aspect of liberty. Of all the rights protected by the Constitution, freedom of speech is generally regarded as the most powerful guard against oppression. And for good reason. The right to express thoughts, ideas and concepts without fear of repression or reprisal is quintessential to self-determination and a bedrock principle of democracy. But it is even more than that. It is part of our national identity as Americans. We are free people. That means, above everything, we can speak freely.
You would think then, that freedom of speech and expression is not a contingent right. You would think that there are no prerequisites or hoops to jump through before we can speak our mind. It’s not like we have to tell the government we are “opting into” the First Amendment to enjoy its privileges, right? We don’t need to tell the government we intend to exercise our First Amendment right before we express ourselves, right? The First Amendment applies automatically, right????? Well, until last week, you would be correct. But according to one federal district court judge in Philadelphia, we are all sadly mistaken.
Before discussing Judge Mark Kearney’s remarkable decision last week in Fields v. City of Philadelphia, et. al., it would be helpful to put the First Amendment in context. The actual text of the First Amendment dealing with speech is pretty short, but its interpretation and application is incredibly broad. The First Amendment itself states:
“Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Like I said, the text is pretty short. But over the past 200 plus years, Courts interpreting the First Amendment have applied it very broadly. Which makes sense, because the First Amendment was not intended to apply only to verbal “speech.” We don’t just communicate through words after all. For instance, shaking your head side-to-side is just as effective as saying the word “no.” Likewise, whether words are used or not, artwork and artistic performance are quintessential mediums of expression and enjoy the same First Amendment privilege as actual speech.
The point here is that “freedom of speech” does not just apply to speech, but to actions that can reasonable be considered expressive (e.g., shaking your head, pointing a finger, dancing, even remaining silent). And there is no itemized list of non-verbal communications that can be considered “speech.” Judges are often tasked with the job of determining when certain non-verbal conduct constitutes expression for purposes of the First Amendment.
Is Videotaping Police Officers Protected by the First Amendment?
Over the past few years, one novel form of non-verbal conduct that has been considered a protected form of expression is citizens taking photographs or video footage of police officers. This is considered a “novel” form of speech because it really didn’t become a thing until the recent advent of smart phones with built in cameras. But today, especially with recent controversies involving allegations of police brutality and misconduct, it has become rather common practice for citizens to video tape and photograph police officers. This is especially true when citizens, right or wrong, are concerned about the conduct of officers making arrests.
Why is recording police in the field considered protected speech? Because, again, the freedom of speech does not just apply to speech. In the context of recording police officers, there are two important interests at stake for purposes of the First Amendment. First, the act of recording police officers in action can be considered “expressive conduct” because it can imply criticism or protest of the police action. Moreover, the art of taking photographs (or shooting film) is inherently artistic and requires artistic judgment (ask any professional photographer). Even more importantly, recording police officers is considered “news gathering” and historically the right of journalist to record what they believe to be newsworthy footage has been afforded First Amendment protection. The idea being that photographing and/or recording the actions of government officials promotes discussion of government affairs.
Virtually every court that has considered the issue of recording police officers has concluded that it is protected by the First Amendment. The list includes federal courts of appeal in the First, Fourth, Ninth and Eleventh Circuits. The First Circuit addressed this issue way back in 2011 and was pretty firm in deciding that the First Amendment protected citizens filming on-duty police officers. In Glick v. Cunniffe, the First Circuit explained its rational as follows:
It is firmly established that the First Amendment’s [reach] extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to gathering and dissemination of information. . . . An important corollary to this interest in protecting the stock of public information is that ‘there is an undoubted right to gather news ‘from any source by means within the law. . . . The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities fits comfortably within these principles. Gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of government affairs.’
Fields v. City of Philadelphia
Now, with this background in place, let’s discuss Judge Kearney’s recent decision in Fields v. City of Philadelphia. The Fields case is actually two similar (companion) cases involving the same issue – does the First Amendment protect citizens filming on-duty police officers? Judge Kearney concluded that, based on the factual circumstances of the cases before him, it did not. It’s not so much Judge Kearny’s conclusion that the First Amendment did not apply to the plaintiffs in Fields (which is inconsistent with virtually every other federal decision on the issue) that is troubling. Rather, it is how he rationalized his decision.
In 2013, Richard Fields was a student at Temple University in Philadelphia. Allegedly, he was walking down the street and saw about 20 officers standing outside of a house party. Fields thought it was an interesting scene – seeing so many officers outside a house party – and thought it would make a good picture. So he took one. At that point, one of the officer on the scene approached Fields and allegedly stated “do you like taking pictures of grown men” and insisted Fields “move along.” For his part, Fields didn’t particularly enjoy photographing grown men, and, quite appropriately, declined the officer’s invitation to “move along.” It is a free country after all! At which point he was arrested and cited for “Obstructing Highways and Other Public Passages.” The officer also took Fields’ phone and began looking through the photos, but did not delete them.
Not to be outdone by Fields, in 2012 Amanda Geraci attended a public protest against hydraulic fracking outside the Pennsylvania Convention Center. At some point during the protest, one of the protesters was being arrested. Geraci took out her phone and began recording the arrest. According to Geraci, she was “attacked” by an officer who restrained her and prevented her from recording the arrest. She was not arrested or cited.
Both Fields and Geraci sued the City of Philadelphia. Both alleged that the Philadelphia Police violated their civil rights and, specifically, the First Amendment. Both suits came before Federal District Court Judge Mark Kearney.
At the close of discovery, the City filed Motions for Summary Judgment against both plaintiffs, contending that there is no general First Amendment protection for citizens recording on-duty police officers. As Judge Kearney saw it, the square issue for him to decide was “whether photographing or filming police . . . without challenging the police is expressive conduct protected by the First Amendment.”
Now, for legal observers this case seemed like a slam dunk for the plaintiffs. As noted above, the issue had already been decided by a number of appellate courts and everyone seems to agree the First Amendment applies. But Judge Kearney saw things a bit differently and rejected the plaintiffs’ First Amendment claims. The decision itself is almost certainly wrong, but that’s not the real issue. The real issue is the legal reasoning Judge Kearney used to reach his conclusion. In Judge Kearney’s opinion, the First Amendment only protects citizens recording on-duty officers if they first explain to the officers why they are recording them.
According to Judge Kearney,if you are going to photograph the police you need to tell them why you are taking the photograph. The act of photographing or recording alone is not “expressive conduct.” More specifically, before the First Amendment protections apply, Judge Kearney would require citizens to explain that they are recording police (1) out of protest or (2) because they are critical of the police officers conduct. In other words, if you live in Philadelphia and are interested in the fundamental protections guaranteed by the First Amendment, you literally need to say so.
In theory, Judge Kearney’s decision is difficult to reconcile with . . . well…the whole concept that the First Amendment is a fundamental, inalienable right. But the real, practical problem (and one I don’t think the Judge intended) is that the decision in Fields makes the First Amendment contingent; It only applies if a citizen can explain to a police officer why it applies. That cannot be the law.
Why not? Well, let’s have some fun with this. With the recent passing of Justice Scalia, the Supreme Court lost its lone strict constructionist. From a strict constructionist’s perspective, nowhere in the First Amendment does it say that the right to free speech is dependent upon a citizen’s ability to explain why the First Amendment should apply. The Constitution does not put the burden on citizens to invoke guaranteed rights. If it did, those rights would not be guaranteed, they would be contingent.
Another practical problem with the Fields approach is that it assumes (and really requires) that (1) all citizens know their Constitutional rights and (2) understand that to invoke those rights when filming police officers, they need to utter magic words protesting or criticizing the police (god help anyone unable to speak or with laryngitis!). With respect to uttering words of protest or criticism towards police, if anything grafting such an arbitrary prerequisite onto the First Amendment would only serve to inflame or increase tensions between on-duty officers and the citizens recording them. It really doesn’t make much sense.
To be fair, the line between traditional conduct (not protected by the First Amendment) and expressive conduct (protected by the First Amendment) is not always clear. And whether conduct can be considered “expressive” is often in the eye of the beholder. To Judge Kearney’s credit, he recognized and acknowledged that his opinion in Fields contradicted similar decisions in other Circuits. Judge Kearney was not bound by any precedent in the 3rd Circuit and had the authority and the responsibility to decide the case on the facts before him.
But at the end of the day the Fields decision was wrongly decided. Constitutional rights are considered “guaranteed” for a reason. The Fields decision would fundamentally change the centuries of law by putting a new burden on plaintiffs’ to explain why they are entitled to constitutional rights before those rights can be invoked. Such a burden is, on its face, inconsistent with concepts of liberty and freedom and frankly, unworkable.
It seems inevitable that the Fields decision will be overturned by the 3rd Circuit. But until then, if you are in Philadelphia and get the urge to take photographs of police officers, best to play it safe and yell “protest” and “I am critical of police” while taking your pictures.
James Goslee is a trial attorney in Philadelphia and can be reached at http://jamiegoslee.com/about/
Photo Credit: Kristy Pargeter, Dreamstime Stock Photos