Artistic Expression, Political Expression
Thebian and Nassereddine v. Public Prosecutor
Closed Expands Expression
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The Court of Appeals for the Third Circuit reversed and remanded the District Court, finding that the First Amendment includes an express right to film the police, regardless of whether the act of filming is considered expressive conduct or not. However, the Court also found that the police officers were entitled to qualified immunity because at the time the incident occurred this was not a clearly established right as the courts were split on this issue. Now numerous districts have found an express right to film the police.
This case is highly influential because it marks the Third Circuit’s joinder with several other jurisdictions creating an express constitutional right to film the police. As the Court found that the officers in this case were entitled to qualified immunity, this was clearly a case where the Court wanted to discuss the First Amendment issue to create a binding precedent for the lower courts.
This case involves two Plaintiffs: Richard Fields and Amanda Geraci. Richard Fields was walking on the sidewalk in September 2013, when he observed a group of police officers outside a home holding a social event. Fields used his phone to take a picture of the scene simply because he thought it was “an interesting scene,” and was approached by Officer Sisca, who asked him to leave. When Fields refused, Officer Sisca handcuffed him, placed him in a police vehicle, and confiscated his cell phone. Officer Sisca cited Fields for “Obstructing Highway and Other Public Passages” and returned his phone. Fields brought suit against Sisca alleging retaliation for his exercise of his First Amendment right to observe the police and violation of his Fourth Amendment right to be free from unreasonable search and seizure.
Amanda Geraci attended a public protest in September 2012 as a “legal observer.” During the protest, one of the protesters was arrested and Geraci attempted to videotape the scene. Officer Brown physically restrained her to prevent her from taping the arrest. She was then released. Geraci brought suit for First Amendment retaliation and violation of her Fourth Amendment right to be free from excessive force.
Geraci and Fields filed suit against the police officers in July 2014. The Eastern District Court of Pennsylvania granted summary judgment in favor of the Defendants on the Plaintiffs’ First Amendment claims and ordered a trial on Fields’ claims for unreasonable search and false arrest and Geraci’s claim for the use of excessive force. The District Court held that video recording or photographing police activity without the intent to protest, chronicle, criticize or challenge the activity does not constitute expressive conduct protected under the First Amendment. For conduct to receive First Amendment protections, the putative speaker must engage in direct and expressive actions to convey a message, belief or criticism which is likely to be understood by those who see it. The Court found no basis to craft a new First Amendment right based solely on “observing and recording” without expressing a clear message understood by the police or other bystanders. However, the Court noted that several other Circuits had interpreted expressive conduct more broadly to include mere observation based on the belief that gathering information on what public officials do on public property constitutes scrutiny which can prevent abuses.
The decision of the District Court was appealed to the Court of Appeals for the Third Circuit who reversed and remanded.
On July 7, 2017, the Third Circuit issued their opinion reversing the lower court finding this was not a case about expressive conduct, but rather about the important First Amendment right of access to information.
Defendants argued that the Court need not even address the First Amendment because the police officers are entitled to qualified immunity. The Court rejected this argument due to the importance of the First Amendment issue in this case and first addressed that issue before moving to the issue of whether immunity was applicable in this case.
The Court of Appeals disagreed with the lower court’s finding that because there was no expressive conduct at the time the recordings took place, there could be no First Amendment violation. Firstly, it said, there was never an opportunity for the Plaintiffs to put the recordings into use as expressive conduct as the police stopped the recordings. Secondly, the Court found that, regardless of expressive conduct, this case was purely concerned with a First Amendment issue about the public’s right to film the police. It said that this was an extremely important right because it contributes to public discussion on matters concerning the government, which is of the uppermost importance in a democratic society. The press has the right to film the police, and therefore so do members of the general public. These videos are not only important for the public but have helped police departments identify and discipline misconduct and have protected civil rights of individuals. The Court did rule that filming the police, like any First Amendment right, is subject to reasonable time, place, and manner restrictions, but that they did not apply in the instant case. Therefore, the Court found there is an established right to film the police under the First Amendment, regardless of whether that action is considered expressive conduct.
The Court then turned to the issue of qualified immunity, and found that the officers were entitled to immunity. Qualified immunity will attach unless it is clear there is a constitutional right that the officers are violating. Here, as there was varying precedent at the time these incidents occurred as to whether there was a clearly established right to film the police, it was reasonable for the officers to assume there was not. The Court remanded on the issue of municipal liability as the District Court did not address this issue.
Justice Nygaard wrote separately concurring in part and dissenting in part. Justice Nygaard would not have found qualified immunity as he believes the First Amendment right was and is clearly established but concurred that the case should have been reversed and remanded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court of Appeals expands expression by reversing the decision of the District Court and making a bright line ruling that the public has a right to film the police in their official duties, which is established through the First Amendment right to information and to contribute to the free discourse of ideas on matters of public concern. This case is highly influential because it marks the Third Circuit’s joinder with several other jurisdictions creating an express constitutional right to film the police. As the Court found that the officers in this case were entitled to qualified immunity, this was clearly a case where the Court wanted to discuss the First Amendment issue to create a binding precedent for the lower courts.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Court of Appeals, this decision binds all lower courts in the Third Circuit.
Let us know if you notice errors or if the case analysis needs revision.