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”? Continue reading →