Does the First Amendment guarantee the right of individuals to record police officers exercising their official duties in public? That is the question being considered by the U.S. Court of Appeals for the Third Circuit in two consolidated cases: Fields v. City of Philadelphia and Geraci v. City of Philadelphia. With the rise of smartphones, which make recording and sharing photos and videos easier than ever before, more courts are considering this question.

What is this case about?

Richard Fields, walking down the sidewalk one evening, noticed about 20 police officers breaking up a house party on the other side of the street. Fields then used his iPhone to photograph the scene. One police officer saw Fields and walked over to him. The officer asked, “Do you like taking pictures of grown men?” and then ordered Fields to leave the area. Being on a public sidewalk and not interfering with police activity, Fields refused. The officer arrested him.

In a separate incident, Amanda Geraci, a legal observer who monitors interactions between the police and civilians during protests, was attending an anti-fracking protest when she saw officers arrest one of the protestors. Geraci approached the scene in an attempt to videotape the arrest with her camera, but one officer pinned her against a pillar and prevented her from recording. Both sued the City of Philadelphia.  

A judge in the Eastern District of Pennsylvania ruled in February 2016 that Fields and Geraci were not protected by the First Amendment, concluding that the First Amendment does not guarantee the right to record the police unless the individual expresses criticism of the police either immediately before or during the recording.

How is EFF participating in this case?

EFF argued in an amicus brief that the First Amendment protects not only the sharing, but also the recording of photographs, videos, and audio, particularly of on-duty police officers in public places. Photography and videography are inherently expressive activities, and recording police officers specifically is a protected form of information gathering about a matter of profound public concern: how government officials exercise their extraordinary powers.

Additionally, the district court’s rule that First Amendment protection for recording the police only attaches when an individual expresses a hostile viewpoint amounts to unconstitutional viewpoint discrimination. As a practical matter, requiring someone to express their opposition to police officers while recording them could escalate the situation and put the recorder in harm’s way.

Oral argument took place on May 9, 2017 (video).