Court: Filming Cops Isn't First Amendment Right

Unless you're actively challenging or criticizing the police, don't whip out your cellphone to record them. That's the ruling of a US District Court in Pennsylvania in a joint lawsuit covering two cases in Philadelphia, the PhillyVoice reports. The complaint—which the ACLU of Pennsylvania says is the fourth suit in a series designed to curb the Philly PD's "illegal practice of arresting citizens in retaliation for observing or recording the police performing their duties"—is in the names of Amanda Geraci and Richard Fields, who sued the city for infringing on their First Amendment and Fourth Amendment rights. In the case of Geraci, IDed by the ABA Journal as a "trained legal observer," she was at a 2012 fracking protest and says she was physically restrained and prevented from recording an arrest. Fields says he was handcuffed, put in a police van, and stripped of his cellphone and searched after he recorded what he thought was a "great picture" of 20 cops outside a 2013 Temple University house party.

The District Court on Friday did allow the plaintiffs' Fourth Amendment claims regarding excessive force (Geraci) and false arrest and unreasonable search (Fields). Their First Amendment rights were another story, with the court deciding citizens can't record police actions unless they engage in what's called "expressive conduct"—they tell the cops why they want to capture certain images or moments, per the ABA Journal. "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 decision reads. Eugene Volokh takes issue in the Washington Post with the ruling, noting precedents set in lower federal courts for this type of recording and that what Geraci and Fields were doing was silently "gathering" information, which he says is as constitutional as "loud" gathering of information. An appeal is reportedly in the works, Volokh says. (Video got this professor fired.)