Case Law Alerts
I have a First Amendment right to observe and record! Or so I thought.
The United States District Court for the Eastern District of Pennsylvania finds there is no First Amendment right to observe and record police officers absent some other expressive conduct. In two separate incidents, Philadelphia police officers encountered, and in once case cited, two individuals who had been capturing police conduct on film but who were not commenting or questioning the police conduct at the time of the recordings. Both individuals filed suit, alleging retaliation for exercising their First Amendment right to photograph police activity. The District Court analyzed the conduct according to the burden as explained by the Supreme Court, namely that expressive conduct exists where there is an intent to convey a particularized message accompanied by a great likelihood that the intended message would be understood by those who view it. Accordingly, conduct that is not accompanied by further comments or conduct cannot be deemed expressive conduct for purposes of the First Amendment. Police officers must still exercise caution when arresting a would-be photographer or seizing a cell phone as such activity still implicates Fourth Amendment rights.
Case Law Alerts, 2nd Quarter, April 1, 2016
Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.