One of the Nation’s Only Judges to Rule Against Right to Record Police Just Got Overturned
If you are one of the , then there’s a good chance that every time you leave the house, you carry with you the most powerful tool for police accountability that exists today. that your right to record the police performing their duties in public is part of the freedom of speech protected by the First Amendment.
we’ve seen civilians’ photos and videos of police expose the realities of policing in powerful ways. Ordinary people’s cell phone recordings of police interactions have been a starting point for national conversations about police reform and have sparked grassroots movements seeking accountability for how — and against whom — the police use their tremendous power.
Unsurprisingly, police retaliation against civilians who attempt to record police has also become commonplace.
Last week, the Third Circuit Court of Appeals (which covers Pennsylvania, Delaware, and New Jersey) became the sixth federal appellate court to acknowledge that ordinary people with recording devices not only have an important role to play in holding the police accountable — they also have constitutional protection for this activity. When police retaliate against people who record them, they violate the First Amendment. No federal court of appeals has disagreed with this. Five of the courts of appeal have not ruled on the matter, but it’s looking increasingly unlikely that any of them will disagree.
In the past few years, the ACLU of Pennsylvania has filed five lawsuits against the City of Philadelphia — and several more against other municipalities — on behalf of people who were arrested, detained, or cited in retaliation for recording the police. The most recent two cases in this series were brought on behalf of Rick Fields, a Temple University undergrad arrested on a public sidewalk for taking an iPhone photo of police breaking up a house party across the street, and Amanda Geraci, a legal observer who was violently restrained across the neck by a police officer at a demonstration when she attempted to photograph the police arresting a protestor. In February 2016, a trial judge threw their cases out, reasoning (incorrectly) that the act of recording the police was not protected by the First Amendment.
On July 7, the Third Circuit reversed that ruling, concluding that Mr. Fields and Ms. Geraci’s First Amendment rights had been violated.
The court explained that, because the First Amendment plainly protects the right to possess and distribute photos and videos, it must also protect the act of making those photos and videos. But even more importantly, the court explained, the First Amendment protects the right to gather information about public officials, including police officers. Without a constitutional right to collect and disseminate information about the government, the people would be left in the dark, unable to make informed decisions and participate effectively in the democratic process.
Indeed, in 2017, civilians with smartphones are as critical a source of information about how police officers use their power as the formal press. As the Trump administration begins to scale back the federal government’s police reform and civil rights work, the role that ordinary people play in keeping the local police forces in check has never been more important.
So download the ACLU Mobile Justice app for your state. Brush up on your rights when recording the police. And if you find yourself witness to a police encounter that you think needs to be documented, stay safe, and pull out your phone. The ACLU and the U.S. Constitution have your back.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.