AAN was one of 32 media organizations who joined an amicus brief drafted by the Reporters Committee for Freedom of the Press in a case that could define the ability of citizens to record the activities of police.  This particular case arises from the arrest of a Temple University student for photographing on-duty Philadelphia police officers.  It is actually the 4th in a series of lawsuits brought by the ACLU of Pennsylvania in the wake of the Philadelphia PD arresting citizens in retaliation for observing or recording the police in the performance of their duties (despite the fact that the Philadelphia Chief of Police issued a memo to officers in September 2011 telling reminding them that individuals have a First Amendment right to photograph and record officers).

The case was filed in the United States District Court for the Eastern District of Pennsylvania  which granted the city’s motion for summary judgment and dismissed the First Amendment claims raised by the plaintiffs. The federal district court judge held that bystanders do not have a First Amendment right to record police officers unless the citizen is actively engaged in “expressive conduct” like criticizing the police, as opposed to just observing and recording.  The ACLU has appealed to the United States Court of Appeals for the Third Circuit.

Our brief focuses on how user-generated video content is meaningful to the news media, and how not recognizing a protection for the activity under the First Amendment ultimately harms the public. The major arguments include:

The news media is increasingly relying on video taken by non-journalist bystanders in covering breaking news events. This user-generated content has helped journalists expose government abuse, especially where police-citizen interactions are involved, dating back to the Rodney King video.  That video is described as “perhaps the most famous example of user-created video that shows the news media can work with citizens to inform the general public” and resulted in the formation of an independent commission to investigate the LAPD.   The brief also recounts the many recent videos which have countered official claims after police shootings and others which help explain and underline the severity of a particular incident (such as the Eric Garner  and Philando Castile videos).  This video evidence almost always serves the public interest, regardless of which side it favors. One interesting fact presented in the brief: a study of 8 international 24-hour news channels found that an average of 11 pieces of user generated content were used every day by these news outlets, which can provide a greater audience than simply posting to sites like YouTube, Facebook and Twitter.

In holding that a citizen watching police activities has no constitutional protection in recording an event (absent an intent to criticize or engage in other expressive conduct), the District Court has increased the likelihood that important information won’t reach the public.  Police officers are more likely to pressure citizens into turning off their cameras or even deleting legally recorded footage.  Furthermore, there are several situations in which police use of force or other illegal or questionable actions are filmed even where the individual in question did not intend to record police for purposes of criticism.  Those serendipitous collections of police malfeasance should not be threatened either.

Aside from the patently absurd ruling in the District Court, we felt the need to join this effort in order to highlight the extent to which news media rely on user-generated content, especially where important issues like police use of force are involved.  If the Court of Appeals affirms the District Court’s ruling, this becomes the law throughout Pennsylvania and Delaware. Given the number of retaliatory arrests Philadelphia police alone have made, this could quickly result in a dire situation. There are nationwide implications as well when a Court of Appeals issues a ruling like this one, in that other police departments might test this theory until told to stop (or not) by a court in their jurisdiction.