Over the past few years courts have held the First Amendment as a right that protects civilians to record (whether by video or photograph) public places and, in some of the more noteworthy cases, the police. But a court decision this week could overturn that.

On Friday, a federal trial court returned an opinion in Fields v. City of Philadelphia that involved much different and more narrow approach: In this consolidation of two cases, the court found there is no constitutional right to video record the police when that act is not in the name of “challenge or criticism” of police conduct.

It’s true that at the time the two plaintiffs, Richard Fields and Amanda Geraci, were recording, they had the intention of criticizing police conduct. Fields walked past a Philadelphia house party with about 20 officers standing outside and thought it would make a good picture. An officer asked him if he enjoyed “taking pictures of grown men,” and detained him (including handcuffing him, emptying his pockets, and searching his cell phone) after he refused to leave.

Credit: joshnezam
Credit: joshnezam

Geraci, meanwhile, self-described as a legal observer, who was at a public protest of hydraulic fracturing and carried her camera with her videotape the scene and any interactions between protesters and officers. As Geraci tried to move in to record an arrest, she was physically restrained from doing so by one of the officers, according to the court.

The opinion has allowed the plaintiff’s Fourth Amendment claims to continue. But according to Judge Mark Kearney, the First Amendment does not protect the plaintiffs’ right to record the police if there was no challenge to what they were seeing.

“Fields and Geraci do not suggest they intended to share their images immediately upon image capture. Geraci wanted to observe only and Fields took a picture of an “interesting” and “cool” scene. We find these authorities are inapposite,” said Kearney in his opinion. “There is no contrary authority by the Supreme Court or our Court of Appeals holding a citizen observing or recording police without criticism or challenge is engaging in the expressive conduct necessary for First Amendment protection. As such, summary judgment will be granted Defendants on Fields’ and Geraci’ s First Amendment retaliation claims.”

If you’re finding it a bit bizarre that a court would say that because there’s no evidence of suspect police behavior from either parties there’s no need for a First Amendment protection, you’re not alone. Especially since a federal appeals court has maintained the right to film the police in all but the most unique circumstances in 2014. Not to mention the Department of Justice in a letter to the Baltimore Police Department.

Additionally, it’s a strange line in the sand that’s drawn for challenging or criticizing the police (itself a potentially dangerous and vulnerable position frequently challenged by officers even when legal) when even collecting information is arguably a form of expression, as Eugene Volkoh writes for The Washington Post:

Whether one is physically speaking (to challenge or criticize the police or to praise them or to say something else) is relevant to whether one is engaged in expression. But it’s not relevant to whether one is gathering information, and the First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information.

Your being able to spend money to express your views is protected even when you don’t say anything while writing the check (since your plan is to use the funds to support speech that takes place later). Your being able to associate with others for expressive purposes, for instance by signing a membership form or paying your membership dues, is protected even when you aren’t actually challenging or criticizing anyone while associating (since your plan is for your association to facilitate speech that takes place later). The same should be true of your recording events in public places.

What Friday’s opinion really is the latest that allows for the filming of police, but under heavily restricted circumstances: Rules like Texas bill last year allowed photography of the police—so long as you were 25 feet or more away, or were a member of an FCC licensed radio, television, or print outlet. Or the 2011 case that Elizabeth Spainhour reported on for Digital Media & Data Privacy Law, not even from outside your house, showing that those filming the police need to maneuver not only wiretapping statutes but obstruction statutes as well:

The Salisbury Post reported in August 2010 that a woman in Salisbury, N.C., was found guilty of resisting, obstructing, and delaying an officer after she refused an officer’s order to go inside her home while she filmed a traffic stop from her front porch. (Video of the incident is posted here.) According to the Salisbury Post’s coverage, the judge reasoned that the woman could have observed the incident from inside her home and should have respected the officer’s request. The Rowan County District Court sentenced the woman to 6 months of probation and community service.

The truth is that though each incident is unique, bystanders do have a legal right to film police—and most officers know that. The fact that a court is calling that right into question—and painting it as a time when the First Amendment protection isn’t needed—is a bit ludicrous. There’s a lot of misinformation spread around when it comes to filming the police, and telling citizens that they have to risk invoking wrath by painting themselves as challenging the system or else turn off their camera doesn’t seem like it’ll hold up to an appeal at the Third Circuit (if it makes it that far). After all, in a day when video evidence still isn’t enough for civilian journalists to indict, they need all the tools they can get.