Last month, the federal district court in Philadelphia announced a controversial ruling saying citizens do not necessarily have the right to record video. Unless a videographer verbally announces recording either as an act of protest or to challenge to officers’ actions, police can stop them, philly.com reported.
In the last few years, critiquing and questioning actions of police officers have become commonplace in American society. Cities across the country have already seen similar cases as smartphones have made video recording more accessible. Recording police officers—or anyone, for that matter—on a public street is a right that should be protected by the First Amendment.
According to the American Civil Liberties Union, anyone has a right to photograph or record video of anything in plain view when in a public space, which includes police doing their jobs or citizens getting arrested. Police can tell you to stop recording or taking photos if you are truly interfering with law enforcement actions. They do not, though, have the right to confiscate or demand to see your photos or video without a warrant and cannot, under any circumstances, destroy your footage.
Backlash has rightly followed the ruling, with the majority of voices saying it infringes on individuals’ rights.
“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,” U.S. District Judge Mark A. Kearney wrote in his opinion.
This ruling is a major hindrance, not only to reporters—for which the gathering of information usually applies—but also to regular citizens. We’ve seen how recordings of police have brought to light the actual events surrounding the deaths of Freddie Gray from Baltimore and Walter Scott from Charleston, South Carolina, among others.
The ACLU has already gathered a group of lawyers to challenge the ruling. One of the cases Kearney heard for the decision was of senior actuarial science major Rick Fields, who filed a complaint stating he was wrongfully arrested and detained for photographing police breaking up a party on 18th Street near Mifflin in South Philly in September 2013. The Temple News reported last month that Fields will work with the ACLU to appeal the case.
Christopher Harper, a professor in the journalism department who teaches courses on media law, said last month’s ruling was an uncharacteristic one, and when compared with previous cases, he said it shouldn’t hold up.
“It’s a First Amendment and Fourth Amendment right,” Harper said. “The judge has lopped off the first part of it.”
A violation of the Fourth Amendment, which prohibits unreasonable search and seizure and requirement of probable cause to arrest a citizen, is often cited during a wrongful arrest suit.
Glik v. Cunniffe, which in 2011 determined Simon Glik’s constitutional rights, had indeed been violated for being arrested while filming police, set the stage for further cases of recording police.
Later that year, then-Police Commissioner Charles Ramsey issued a statement to all officers saying they should “reasonably anticipate and expect to be photographed, videotaped and/or audibly recorded by members of the general public.”
If the decision stands, it’s likely altercations with police and distrust of the force will increase, as accountability goes out the window.
“It will be a big step back,” Harper said.
Without checks and balances in our public sphere, citizens’ rights can too easily be infringed upon. Unfortunately, filming police has become a staple in protecting the rights of those under arrest and an asset to those defending them.
As public servants, police and any other public figures should welcome documentation to expose their good work—only those who are misbehaving should be afraid of what it may show.
Paige Gross can be reached at firstname.lastname@example.org or on Twitter @By_paigegross.