Attorney General v. Clarke
Fields v. City of Philadelphia
Previous Summary and Outcome for District Court Ruling
The Eastern District Court of Pennsylvania 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. In separate incidents, citizens Fields and Geraci each photographed police officers performing their duties as observers with no stated purpose or message in taking the photos. 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 have 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.