U.S. District Judge Mark Kearney has ruled that citizens don’t have a First Amendment right to take cellphone videos and photos of police unless they are challenging or criticizing the police conduct.
This opinion makes no sense, and is dead wrong.
Richard Fields, a Temple University student, took a cellphone photo of about 20 police officers standing outside a house party because, he testified, he thought it would be an interesting picture. Amanda Geraci, who says she is “a trained legal observer,” whatever that is, tried to video an arrest during a an anti-fracking protest.
Fields had his cellphone seized and was cuffed, as an officer searched his cellphone before returning it and cited him for obstructing the highway and public passages while taking the photo. Geraci said an officer physically restrained her to prevent her from recording the arrest. The two both sued for alleged First and Fourth Amendment violations, and their cases were consolidated before the court, as the same Constitutional issues were involved.
Judge Kearney argued that Fields and Geraci would have to show their behavior was “expressive conduct” to support a First Amendment claim. Neither plaintiff met that burden, because neither told the police why they wanted to capture the images, Kearney wrote. “The conduct must be direct and expressive; we cannot be left guessing as to the ‘expression’ intended by the conduct.”
“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.”
What astounding nonsense! Would Kearney argue that an oil painting was similarly ambiguous as “expressive” without the painter saying, “I am painting the picture so that I have a painting that I can show others”? What do people take photographs for? Does this judge understand the principle of photography? Apparently not. Kearney goes on to say that the photography would be protected if its intent was to show police misconduct. What exactly is that third category of photography between photos or films intended to create a record that can be viewed by others, and photos or films intended to prove misconduct? Photos or films intended to prove good conduct? Photos or films taken to ensure that the camera works, and immediately thrown away? Photos or films taken for no reason whatsoever? As I read the opinion, Kearney thinks officers could stop a photographer from taking any photos in public of anyone, unless he or she somehow communicated first that these were “expressive” photos. Where do the police get the power to stop citizens from engaging in legal activity? There’s no law against taking photographs of anyone or anything in public, including police.
This is ridiculous. The ACLU eveidently thinks so too, though it was not involved in the case. Here’s what the civil liberties protection groups says, in part, about photographs of police:
You Have Every Right to Photograph That Cop!
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right — and that includes the outside of federal buildings, as well as transportation facilities, and police and other government officials carrying out their duties.
However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places, and harassing, detaining and arresting those who fail to comply. The ACLU, photographer’s groups, and others have been complaining about such incidents for years — and consistently winning in court. Yet, a continuing stream of incidents of illegal harassment of photographers and videographers makes it clear that the problem is not going away….
I guess not!
Judging from the opinion, the cops were annoyed that their permission wasn’t requested first.
Officer Sisca approached him after he took the picture. 6 Fields alleges Officer Sisca questioned him, “[d]o you like taking pictures of grown men?” Fields answered “No, I’m just walking by.” Officer Sisca asked him to leave. Fields refused to leave “[b]ecause I felt that I was doing nothing wrong…”
Fields wasn’t doing anything wrong. Nor should Fields have asked permission to photograph the police. This is different from the Bill Murray case we covered here recently, where the Ethics Alarms position is that it is generally unethical for someone to take photographs of unwilling subjects, and that when possible, consent should be sought first as a matter of courtesy and Golden Rule reciprocity. When the subjects are police officers, however, and they are in uniform, not only isn’t a request for consent necessary, it creates an unethical precedent. The government may not impede First Amendment expression, and it is an abuse of power to do so. Asking permission wrongly concedes that the police have the right to say, “No.” They don’t have that right. When Bill Murray says “Don’t take my picture,” that’s a private citizen requesting fair and respectful treatment (and maybe being a jerk). When a police officer says “no,” he is using government power to restrain free expression.
Judge Kearney allowed Fourth Amendment claims by Fields and Geraci, and those will go to trial. Someone, however, presumably the ACLU, needs to get his First Amendment ruling reversed.
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Pointer and Source: ABA Journal
Ethics Alarms 
But aren’t we simply saying that we’d be okay with being photographed if we were public officials? Isn’t that a bit of a rationalization for taking pictures of public officials when they don’t want their picture taken?
No. We’re saying public officials have no right not to allow it. I don’t care whether they are OK with it or not. They can’t say no, and they can’t use their position to discourage us. That doesn’t mean ethical people can’t decide not to take their pictures without a good reason.
Would not the inhibition however kick in with a public official in a non-public capacity?
Such as a known police officer out dining with his family?
Exactly. An out of uniform cop, off duty, is a private citizen. Can’t flash his badge or his gun, can ask like anybody else.
Not sure about that. Most cops do carry their badges and guns even when off duty while in state. If they go out of state that’s a different story. Most also won’t hesitate to use them to muscle non-cops.
But that’s the difference between what some unethical do versus what they are ethically obligated not to.
I think it’s clear that off duty police have every ethics expectation of privacy and protection from unwanted photography. Whether members of the community violate ethics and take pictures or cops violate ethics and strong arm them not to is immaterial to the principle.
Sure, just as lawyers use that fact to imply the threats of law suits. Still unethical, in both cases (though not professionally unethical for lawyers).
Is it ethical to take pictures of policemen without their consent?
Only if there’s a utilitarian angle. The Golden Rule applies whether the person is in uniform or not, and I think there’s an argument that if policemen cannot object to being recorded, then perhaps the ethical burden for recording an officer should be higher than for the rest of the population who can. In absence of a utilitarian reason to record the officer, recording them just because you can is being rude just for the sake of being rude.
Again, it’s unethical to do it just because you can, as with anyone else. But you don’t ask permission from someone who not only has no right to stop you if you do it without permission, but also has no right to tell or ask you to stop. Bill Murray has the latter. If police do, because they are police, it is under color of law. They can’t say, “I’m asking you to stop as a citizen, not as a cop.”
Extrapolating this kind of ruling into common law could easily be used to make the paparazzi stalkers photographing of celebrities illegal and make it illegal for anyone to photograph anyone in public regardless of their reason. Then at some point in time it seems that we would have to actually define where the lines are between public and private.
Personally I think the ruling is wrong and should be challenged in a higher court; this is an implied civil right – if you can see it with your eyes then you can photograph it regardless if it’s ethical to do so or not. Now what’s done with that photo afterwards is an entirely different conversation.
Sounds like there are different categories of protection for photographing people in public depending on who they are and what they are doing. Public officials carrying out their duties have zero protection, they are fair game for being photographed. Ordinary people have the right to say no if they are unwilling. Kids should have legal protection altogether.
Frankly I’m not sure how much of this is workable as opposed to just “should bes.” Public officials at a public event are stuck, I think, they are looking to attract attention. Emergency personnel are also kind of stuck, they are wearing those distinctive uniforms in order to be seen. That said, I think a different ethic applies to photographing firemen carrying half suffocated victims out of a burning building, policemen knocking someone around who is resisting arrest, or paramedics treating a bloody accident victim. Not so much the emergency folks themselves, but the civilians involved, since no one wants to be seen in any of those conditions. That said, those type of events are also inherently newsworthy, so chilling photography of them is probably not allowed under the First Amendment.
Yes, I’m familiar with “legal observers,” in fact I saw a few during Fleet Week one time in NYC. The usual progressive folks with too much time on their hands had come to Pier 88 to make it known to the USN and USMC that they didn’t like them and didn’t like what they stood for. The days of truly outrageous conduct like vandalism ended with 9/11, but you still had a pretty big crowd with signs, props, what have you. Among them were a smattering of folks with chartreuse baseball caps that bore the logo “National Lawyers Guild Legal Observer.” These were lefty lawyers volunteering in the hopes that their presence, together with the presence of more cell phone cameras than you could shake a stick at, would deter the NYPD and Navy and Marine security from taking any action against the protesters. Annoying, certainly, but I don’t think the security people would have hesitated to take care of business if need be, and photographs be damned.
Ordinary people can protest against pictures, and can certainly complain about harassment if someone keeps trying to take their picture when they don’t want it taken. What you can’t do, like it or not, is confiscate or damage someone’s camera or attack them, because then you’re the one in the wrong. This is particularly problematic for otherwise public officials at or near their homes or with their families and not actively engaged in the performance of their duties. It’s also problematic for ordinary people just out in the public eye, especially now with zoom lens cameras that let you take a close up of anything without interacting with the person. I’m just not sure there’s really any legitimate grounds for protesting if you are sunbathing on a public beach or doing martial arts exercises in a public park where any passerby is going to see you. Indoors is a different story, no one should be shooting pictures through a window, but again, how do you enforce that?
Then of course comes the question of children. This continues to be a sore spot for me because New Jersey twice considered criminalizing the taking of pictures of children other than one’s own in response to a moral panic. A law like that would have been one step away from criminalizing the possession of a camera. I get that there are a lot of weirdos out there, and I get that it’s all too easy for a photograph to make its way around the world online. I also get that parents want to protect their kids. That doesn’t mean the rest of the world has to cut a wide swath around them and their precious snowflakes. If you really are that fearful that a picture of your kid will end up in the wrong place online, put the kid in a burqa.
Comment of the Day, Steve—very helpful. I’ll try to get it up later today.
Thank you. I never thought cameras would end up with some people thinking they needed to be regulated like alcohol, tobacco, firearms, explosives, narcotics, or other dangerous substances.
Someone has asserted they need to be regulated?
Check my last paragraph.
Must’ve been speed reading at that point.
Consider the case (I don’t have specifics) where someone purposefully walked around naked near their giant front windows where school kids walked to school. They tried to claim their privacy had been invaded even though from the public sidewalk it was clear as day.
“Reasonable expectation of privacy” is a sliding scale depending on the situation. The standard of reasonable is a bit looser when in public, yet with some expectation still present. The standard of reasonable is VERY strict, when in your own home…yet still not fully absolute.
Somewhere between “visibly murdering someone” and “just reading a book in my front room” is the conduct “walking around naked in front of my bay window”. I have a suspicion it lies closer to being outside of the reasonable expectation zone of the sliding scale on the “murdering someone” side of the scale than on the “reading a book” side of the scale…
(That being said, people actively looking in the naked man’s front window are being unethically nosey)
How does the Supreme Court Ruling of Illinois that taking pictures of police officers differ from the Federal Court in this matter?
https://www.rt.com/usa/supreme-court-illinois-police-653/
I don’t think you read your own link.
That’s BS.
“Disorderly conduct”. “Resisting arrest”. “Obstructing the highway”.
We need such laws for genuine cases. When they’re misused like this, perhaps it’s time for some honesty. Have a misdemeanour instead – “doing something legal that a cop doesn’t like”.