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"Because Fields and Geraci do not adduce evidence their conduct may be construed as expression of a belief or criticism of police activity, under governing Supreme Court or Third Circuit precedent we do not find they exercised a constitutionally protected right for which they suffered retaliation."    

--Judge Mark A. Kearny

Over the past several years, questions have arisen in the federal court system regarding the rights of citizens to document the activities of law enforcement officials. As decisions are made in individual cases, we have an increasing body of legal opinion that can help citizen photographers and journalists understand where and how they can expect to be protected while fulfilling their civic duties. As the ACLU maintains:

"Taking photographs and videos of things that are plainly visible from public spaces is your constitutional right.That includes federal buildings, transportation facilities, and police and other government officials carrying out their duties. Unfortunately, law enforcement officers often order people to stop taking photographs or video in public places, and sometimes harass, detain or even arrest people who use their cameras or cell phone recording devices in public." 

In the opinion that served as the impetus for Expressive Conduct dot org, however, Judge Mark A. Kearney, writing for the District Court for Eastern Pennsylvania, recently delivered a technical and crushing blow to the protection of these rights by limiting the claim of a photographer's First Amendment protections to situations in which the individual clearly demonstrates, at the time of photographing or filming, that his or her conduct is expressive. As the ACLU summarizes, Judge Kearney "ruled that civilians have no First Amendment right to record the police unless they are doing so for the purpose of criticizing the police." The Court has since finalized its decision in favor of dismissal for Geraci's first amendment civil suit as of March 14, 2016. 

This opinion upholds and cites several previous 3rd Circuit decisions, notably, Gilles v. Davis (2005) and Kelly v. Borough of Carlisle (2010), each of which hinged on establishing qualified immunity for officers who arrest citizen photographers and journalists, a statute only able to be invoked when the courts have so far failed to rule decisively on a question. See: Garcia v. Montgomery County, Maryland (2015), Montgomery v. Killingsworth (2015).

Qualified Immunity is granted, not on the basis of any precedent, but instead exists in the same strata of individual decision making as probable cause--in Kelly's case, "what would have been clear to a reasonable officer" in a given situation, and "what a reasonable officer would have believed" at the time of an arrest. 

Judge Kearny pairs this protection for law enforcement officials with an overly stringent definition of expressivity, something common in  First Amendment cases dealing with speech and art (i.e. tests designed to prohibit obscenity). This is clear when Judge Kearny brushes past the fact that Geraci was wearing a pink armband that signaled she was a member of Cop Watch Berkeley, an institution Kearny knows "observes interaction between police and civilians during civil disobedience or protests."

Instead, he asserts:

"Because Fields and Geraci do not adduce evidence their conduct may be construed as expression of a belief or criticism of police activity, under governing Supreme Court or Third Circuit precedent we do not find they exercised a constitutionally protected right for which they suffered retaliation."

Under this ruling, citizens must be able to say, at the time of filming, exactly what expressive purpose they believe they are fulfilling when prompted by the police. You cannot look just anywhere you wish--you need a good reason to look. Thus, Judge Kearny writes summarily: "We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct." 

Despite noting guiding opinions in the 1st and 9th circuits tending to the contrary, (see:  Glik v. Cunniffe (2011) and Fordyce v. City of Seattle (1995)) Judge Kearney writes that he will not establish any right to record law enforcement non-expressively in his district:

"The citizens urge us to find, for the first time in this Circuit, photographing police without any challenge or criticism is expressive conduct protected by the First Amendment. While we instinctively understand the citizens' argument, particularly with rapidly developing instant image sharing technology, we find no basis to craft a new First Amendment right based solely on "observing and recording" without expressive conduct and, consistent with the teachings of the Supreme Court and our Court of Appeals, decline to do so today." 

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We believe, however, this criterion is strangely in opposition to the increasingly common methods of blanket surveillance techniques--traffic cameras, police body cameras, city-wide aircraft surveillance--which are permitted to photograph and film incessantly, without express critical purpose. For an extended reflection on this tension, read here.

Different district courts have decided on this issue differently. For instance, Glik v. Cunnuffe (2007) in the 1st Circuit Court has established the right to videotape police officers openly without fear of retaliation. (Though, this decision still states that filming may be subject to appropriate time, manner, and place restrictions.)

Expressive Conduct dot org exists in order to provide those armed with cameras an explicit outlet for expression related to events of police brutality and/or prejudice. Expressive Conduct dot org exists for you as an expressive outlet whenever police misconduct becomes possible. Footage that dissuades a law enforcement official from acting inappropriately will be accepted for consideration as well, making it explicitly expressive as well.

Be ready to claim your expressivity! Print your Expressive Conduct Photographer/Journalist Credentials here.

Download a one-page summation of your photographer's rights, assembled by Bert Krages, here

We urge all potential photographers and journalists to become familiar with, to the fullest extent possible, the precedents set in their own federal district. A good general introduction to photography and the First Amendment (from 2012) can be found here. A more recent list of cases won by citizen photographers (from 2015) is available here

We do not condone breaking any law or treating any human being with disrespect. We are not lawyers. 

Submit your story: expressiveconduct at gmail dot com.