Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
Closed Expands Expression
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The U.S. Court of Appeals for the Fifth Circuit Court reversed in part and affirmed in part the District Court’s dismissal of Turner’s claims under the First and Fourth Amendment for unlawful detention and arrest for filming a police station, the police officers having claimed qualified immunity.
The Circuit Court found that the right to film the police in public under the First Amendment was not clearly established at the time of the incident so Turner’s claim in this regard failed. However the Court reasoned that relevant U.S. Supreme Court and Circuit Court precedents “demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions” and thereby established such a right for the future.
The Circuit Court also found that Turner’s Fourth Amendment rights were violated for unlawful arrest without probable cause.
Plaintiff-Appellant Philip Turner, unarmed, was video recording a police station on a public sidewalk when two officers (Appellees Grinalds and Dyess) approached him from their patrol car and asked him for identification. Turner refused to produce his identification and continued filming the police station. The officers then handcuffed Turner, took his camera, and put him in the back of the patrol car. Turner asked to see a supervisor and Appellee Lieutenant Driver arrived on the scene. Driver also asked Turner for his identification and Turner again refused. Turner told the police officers they needed to release him, and after a lecture from Driver, he was released and his camera returned to him.
Turner then filed suit in the Northern District of Texas against the three police officers, alleging they had violated his First, Fourth, and Fourteenth Amendment rights. The officers filed motions to dismiss which were granted on the basis of qualified immunity. This appeal followed.
Justice Wiener delivered the majority (2/1) decision affirming in part and reversing in part the decision of the lower court.
The Court noted that the doctrine of qualified immunity protects government officials for actions performed during the course of their work if they “reasonably” believe their actions to be legal. Accordingly, when a defendant raises this defense the plaintiff must show “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct” [p. 5-6]. First, the Court looked at the claims under the First Amendment and whether a right to record police activity was “clearly established” by the U.S. courts. In other words, would every reasonable police officer know he was violating the law by stopping someone from filming the police? The Court didn’t think so. The Court noted that the federal circuit courts were split on this issue at the time of the incident and therefore it would be unfair to hold police officers accountable for something when they did not know whether it was legal or not. The Court therefore affirmed the motion to dismiss on First Amendment grounds.
The Court then went on to determine whether this right had now been clearly established and decided that it had. It noted that holding government officers accountable for their actions was an important principle of freedom of speech and debate and that the majority of other circuits had now held that the public does have a right to film the police subject to reasonable restrictions. “We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions” [p.10].
Next, the Court turned to Turner’s claims under the Fourth Amendment; that the officers had violated his right to be free from detention and warrantless arrest. The Court found that Grinalds and Dyess’ initial questioning of Turner was reasonable considering the location of the video recording, the fact that no activity was currently taking place and the several instances of attacks on police and police stations. However, the Court found that the arrest itself was a violation because the officers lacked probable cause to take Turner into custody. Therefore, the Court reversed the District Court’s decision granting Grinalds and Dyress’ motion to dismiss on the arrest claim. However, the Court affirmed the motion to dismiss on the arrest claim against Driver and upheld his claim for qualified immunity finding that he was not involved in the arrest and acted reasonably on his arrival.
Justice Clement filed a dissent arguing that the majority could not hold that the officers did not violate the First Amendment and at the same time that there was henceforth a clearly established right to film the police. Further, Justice Clement said she would not have reversed with respect to Officer Grinalds and Dyess’ grant of qualified immunity because Turner had asked to see a supervisor and therefore detaining him until the supervisor arrived was reasonable.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although not particularly helpful for the Plaintiff here, the decision sets an important precedent for future First Amendment cases by ruling that henceforth it is established case law that private citizens have a right to film the police, subject to reasonable time, place, and manner restrictions, at least in the Fifth Circuit. This is in direct contrast to Fields v. City of Philadelphia where the 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.” Fields v. City of Philadelphia is currently on appeal.
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.
This decision is binding on lower courts in the Fifth Circuit.
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