It has. Been a strange week that is. First I agree with Darrell Issa. Now I learn a federal judge says there is no First Amendment Right to film police. Instead United States District Judge Mark A. Kearney wrote that unless a videographer announces they are recording police conduct as an act of protect, police are free to stop it. Really? Since when did the First Amendment require someone to speak? Let alone requiring someone affirmatively announce they’re protesting. Recording law enforcement and their misdeeds has finally brought police brutality to light. Apparently some judges don’t think its in the national interest to prevent law enforcement from beating citizens or shooting them in the back.
The opinion lacks legal foundation. Other courts, in other jurisdictions have ruled there is a first amendment right to record law enforcement. While the United States Supreme Court has not ruled directly on this precise issue, they have made rulings that are instructive. Kearny attempts to distinguish those cases in what can only be described as judicial acrobatics. Recognizing
Our Court of Appeals recognizes “videotaping or photographing the police in the performance of their duties on public property may be a protected activity. ” 36 Quoting Gilles v. Davis, our Court of Appeals in Kelly v. Borough of Carlisle stated, “more generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.”
Kearny also acknowledges the SCOTUS’ prior rulings on related subjects.
In fact, the Supreme Court has gone so far as to say that ‘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.
The current Supreme Court bench, with its vastly differing views on everything from gun rights to abortion, frequently agree when it comes to the First Amendment. They protect it. The protection of First Amendment Rights is fundamental to the American legal system. Judge Kearny devotes several pages in unsuccessful efforts at distinguishing a number of cases on the subject that all hold the opposite of what he is determined to rule. Legal precedent be damned. You can read his full opinion here.
Thankfully the ACLU has announced its intention to appeal Kearney’s decision.