You have a First Amendment right to record the police in public spaces, and a Fourth and Fourteenth Amendment right protecting you from having those recordings seized without probable cause or due process.
That, at least, is the Obama Administration’s position, articulated in a brief earlier this month by the Department of Justice’s Civil Rights division. (The brief was the second one by the Obama Administration on this issue). The case involves Mannie Garcia, a White House credentialed journalist who sued the Maryland Police department after he was arrested while photographing police officers.
The Administration’s position is a significant development in an unsettled and rapidly changing area of law. It would arguably broaden the types of First Amendment challenges to police conduct that courts have been willing to consider. And, as I discuss below, it is a position that is likely to have important consequences for how we conceive of government accountability in a world where technology is changing the way we enjoy—and conceive of—privacy.
The facts of the case
The case is the latest in a growing number of incidents and legal challenges involving the right to record the police. According to the complaint, on June 6, 2011, Mannie Garcia observed Montgomery County Police Department officers arresting two men on a public street, took out his camera, and began photographing the incident from between 30 feet and 100 feet away. Garcia never interfered with the police activity, and other than clearly and audibly identifying himself as a member of the press, he did not speak to the officers.
This, according to Garcia, is when things got out of hand. One of the officers became visibly upset that Garcia was recording and shouted that Garcia was under arrest. He placed Garcia in a choke-hold and dragged him to the police cruiser. The officer placed Garcia in handcuffs, seized his camera, and threw Garcia to the ground, injuring him. While in the police car, Mr. Garcia observed the officer remove the battery and video card from his camera.
Adding insult to injury, Garcia was charged with disorderly conduct—a charge for which he was acquitted after a bench trial. Although his possessions were returned to him when he was released, Garcia’s video card was never returned.
The Obama Administration’s arguments
The Obama Administration’s brief makes four basic arguments.
- First, the Administration argues that there is a First Amendment right to record the police in public spaces, so long as the recording does not interfere with the police activity. This is both because of where the recording occurred and what it was a recording of. The Supreme Court has long held that public streets are “held in trust for the use of the public … for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. Committee for Industrial Organization. And the recording of police activity—which courts have characterized as speech critical of the state—lies at the very center of what the First Amendment protects. As the Supreme Court has put it, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill.
- Second—bloggers rejoice—the Obama Administration argues that there is no difference, as far as the First Amendment is concerned, between so-called citizen journalists and official members of the press. Garcia was a White-House Credentialed journalist, but his status as such has no bearing on the case—any old (or young) blogger or activist would be entitled to the same protection. (This strikes me as the right result, and in line with Eugene Volokh’s findings on the meaning of “press” in the First Amendment).
- Third, the Administration argues that the Fourth and the Fourteenth Amendment provide strong protection for recordings of police activity once they are made. In Garcia’s case, the brief argues, the police violated Garcia’s Fourth and Fourteenth Amendment rights (in addition to his First Amendment rights) when it seized his camera without a warrant or due process of law. Crucially, the Administration also argues that the reviewing court should treat the Fourth Amendment and First Amendment claims separately.
- Finally, the Obama Administration argues that the police cannot use broad laws that such as disorderly conduct, loitering, disturbing the peace, and resisting arrest as a pretext to arrest individuals for recording the police.
An expansion of First Amendment rights against the police
I wrote this week about the Supreme Court’s ruling in Jardines being in tension with the general rule that courts do not look into police intent in resolving Fourth Amendment issues.
It looks like the Obama Administration’s position on police recording might also create some tension with that rule: it asks a court to treat stops and arrests differently when the purpose of the stop is to prevent someone from peacefully recording police activity.
Specifically, the Administration’s brief is in tension with longstanding Supreme Court doctrine that a police officer’s “[s]ubjective intent does not make otherwise lawful conduct illegal or unconstitutional.” Whren v. United States. In practice, this rule means legal claims that an arrest or stop is based on an improper motive, such as race, will generally fail in court if the police can point to some valid basis for the stop—say, a broken taillight, disorderly conduct, or a loitering violation.
Legal challenges to so-called “pretextual” police stops or arrests (where the police stops you for a traffic violation, but their real reasons were different) are therefore rarely successful.The Obama Administration’s position would seem to change this by making a certain type of police conduct—retaliation for recording the police—actionable even where the police had a valid basis for the arrest.
In other words, the Administration’s brief appears to make an exception to the pretextual stop rule when the pretext in question appears to be quashing First Amendment speech.
Two other facts about the Administration’s brief underscore the breadth of the position. First, the administration asks the court to treat Mr. Garcia’s First and Fourth Amendment claims separately. This means that if Mr. Garcia does not have a Fourth Amendment claim—say, because the officers had some objective basis to arrest him—he may still have a First Amendment claim if the police’s objective basis was a pretext to stop him from recording.
Second, the Administration argues that police should not be permitted to use broad laws that such as disorderly conduct, loitering, disturbing the peace, and resisting arrest as a pretext to arrest individuals for recording the police.
Put together, these arguments would arguably significantly broaden the type of retaliation claims against the police that courts will hear.
I’m hoping to write a bit more about the legalistic aspects of this in another blog post—“when does probable cause kill your First Amendment rights?”
The Fourth Amendment is shrinking. Long live the First Amendment?
Fourth Amendment scholar Paul Ohm recently asked what role the Fourth Amendment will play in a world where technology has radically changed how we conceive of privacy. One might answer with a different question—what role will the First Amendment play in a world where technology has radically changed how we conceive of speech and association?
The First and the Fourth Amendments play different but complimentary roles when it comes to holding the government to account. The privacy and property rights protected by the Fourth Amendment create the necessary space individuals and groups need to flourish, while the speech and associational rights protected by the First Amendment allow people to sound the alarm and mobilize democratic forces when government is out of bounds.
As these police recording cases show, as the Fourth Amendment shrinks in the face of technology, we may see the First Amendment pick up some of the slack. After all, in a world where nearly anyone can record and disseminate a message critical of the government to millions of others, the First Amendment is likely to play a far bigger role in ensuring government accountability than it ever has.