Aross the country, videos of police arresting and even shooting people have sparked lawsuits, protests and even riots. But if a federal judge’s opinion stands, bystanders could be handcuffed in their ability to hold officers accountable by recording them.
U.S. District Judge Mark Kearney in Philadelphia says citizens have no constitutional right to record officers unless they explain they are recording for the purpose of criticizing police, which then would be protected by the First Amendment.
That doesn’t mean it’s illegal to record, but his opinion could open the door to that possibility.
“We find there is no First Amendment right under our governing law to observe and record police officers absent some other expressive conduct,” Kearney wrote in an opinion in February in two cases involving Philadelphia police.
Standing silently with a phone or camera doesn’t cut it, he said.
His opinion conflicts with federal court opinions elsewhere in the country and has been appealed.
The ruling hasn’t prompted police in the Lehigh Valley and elsewhere in Pennsylvania to change policies and shouldn’t deter people from recording because it’s not illegal.
“Even if there were no constitutional rights to record the police, that still doesn’t make it a crime to record the police,” said Molly Tack-Hooper, an attorney with the American Civil Liberties Union in Philadelphia who is working on the cases.
Yet the ruling is important because if the appeal fails, that could clear the way for state lawmakers to try to pass legislation making it illegal to record police, as there would be no constitutional barrier, Tack-Hooper said.