Philadelphia, PA — In an asinine blow to freedom of speech, U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania issued a ruling Friday stating that citizens do not have a First Amendment right to record the police in public.
The ruling was based on the cases of Geraci v. City of Philadelphia and Fields v. City of Philadelphia. Both Geraci and Fields filed suit against the city of Philadelphia claiming their First and Fourth Amendment rights were violated when officers confiscated their cellphones after they filmed police or were barred from filming police.
According to The Legal Intelligencer,
Neither of the plaintiffs, Richard Fields nor Amanda Geraci, were filming the police conduct because they had a criticism or challenge to what they were seeing. For Fields, he thought the conduct was an interesting scene and would make for a good picture, Kearney said. And for Geraci, she was a legal observer trained to observe the police, Kearney said.
Fields was walking down a sidewalk when he saw 20 police officers standing outside of a house party and decided that he would take a picture of it. When he took the photo, a would-be tyrant police officer approached him and asked Fields if he likes “taking pictures of grown men,” and demanded that he leave. When Fields respectfully declined to leave a public area, the officer handcuffed him, emptied his pockets and took and searched his cellphone. He was charged with obstructing the highway and obstructing public passages — for taking a photo.
In Geraci’s case, she was only attempting to film a fracking protest. As she got closer to the scene, police physically restrained her from filming, despite not yet having begun to record.
“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,” Kearney said.
“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,” he continued.
In other words, had Geraci and Fields challenged the conduct of the officers while they were filming, then their ‘speech’ would have been protected. However, they were only passively observing, which, according to this rookie judge, is not free speech.
Kearney explains this failure of logic in the decision,
We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct
Fields’ and Geraci’s alleged “constitutionally protected conduct” consists of observing and photographing, or making a record of, police activity in a public forum. Neither uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. Because we find this issue dispositive on all of Plaintiffs’ First Amendment retaliation claims, we first address whether Fields’ and Geraci’s conduct is constitutionally protected activity under prevailing precedent.
We analyze Fields’ and Geraci’s conduct mindful of the Supreme Court’s admonition “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ …. ” “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. “ “Expressive conduct exists where ‘an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it. “’ “[T]his is a fact-sensitive, context-dependent inquiry, and … the putative speaker bears the burden of proving that his or her conduct is expressive.”
Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is “sufficiently imbued with elements of communication” to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.
The irony here is that had these two individuals challenged the tyrannical cops who attacked them for filming, like Kearney recommends, they would have probably been beaten or worse.
In another failure of logic, ignoring the fact that their phones were taken for practicing their First Amendment, Kearney acknowledged that since the police physically confiscated their property, their Fourth Amendment rights were potentially violated.
“The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims,” Kearney said.
According to the Legal Intelligencer,
The American Civil Liberties Union of Pennsylvania represented the plaintiffs along with Jonathan Feinberg of Kairys, Rudovsky, Messing & Feinberg, John Grogan and Peter Leckman of Langer, Grogan & Diver and Seth Kreimer of the University of Pennsylvania Law School.
Mary Catherine Roper of the ACLU of Pennsylvania said the parties couldn’t appeal until the remaining claims are addressed, but she said she anticipates this case getting before the Third Circuit.
Roper said the practical implications of this decision come down to the fact that a police officer can’t know what the intended use of the image truly is.
“Anybody who makes a drawing, who takes a photograph, who makes a movie is literally creating a communication,” Roper said. “We think it is the act of creating that communication that is in itself an expressive act and is protected by the First Amendment, whether or not you intend to criticize or praise or hide your light under a bushel.”
Only a government that lives like cockroaches in the darkness would criminalize the act of turning on the light.
