One of GOP presidential candidate Donald Trump’s eleven potential Supreme Court picks held that there was no established First Amendment right to videotape police officers during a traffic stop.
Federal Judge Thomas Hardiman of Pennsylvania was appointed by President George W. Bush in 2007 to the US Court of Appeals for the Third Circuit. In 2010, he affirmed a summary judgment that a police officer couldn’t be sued for arresting a passenger after the driver was “pulled over…for speeding and for violating a bumper height restriction.”
Truck passenger Brian Kelly testified that he started videotaping Carlisle police officer David Rogers because he was allegedly yelling, but the policemen claimed that they had been acting professionally. While there was “no dispute” that the video camera was on Kelly’s lap, the police officer said that it was obscured by his hands and seized it.
After Rogers called an Assistant District Attorney from his squad car, Kelly was arrested for allegedly violating the Pennsylvania Wiretapping and Electronic Surveillance Control Act. According to Rogers, another officer later retorted, “when are you guys going to learn you can’t record us.”
However, the charges were dropped weeks later by the Cumberland County District Attorney, but he “issued a memorandum opining that Rogers had probable cause to arrest Kelly,” Hardiman’s opinion stated. Hardiman upheld a District Court ruling that the police officer couldn’t be sued because he “was entitled to qualified immunity.”
“We have not addressed directly the right to videotape police officers,” Hardiman wrote, but noted two earlier rulings. One “hypothesized” that it “may be a protected activity on public property”, while the other agreed that “photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.”
But Hardiman “conclude[d] there was insufficient case law establishing a right to videotape police officers during a traffic stop to put a reasonably competent officer on ‘fair notice’ that seizing a camera or arresting an individual for videotaping police during the stop would violate the First Amendment.”
“Our decision on the First Amendment question is further supported by the fact that none of the precedents upon which Kelly relies involved traffic stops, which the Supreme Court has recognized as inherently dangerous situations,” Hardiman added.
Last month, the Electronic Frontier Foundation bashed a federal district court over “a terrible joint decision in Fields v. City of Philadelphia and Geraci v. City of Philadelphia, holding for the first time that ‘observing and recording’ police activities is not protected by the First Amendment unless an observer visibly challenges police conduct in that moment.”
“The right to record police activities, under both the First and Fourth Amendments, is an increasingly vital digital rights issue,” the EFF blogpost argued. “If allowed to stand, Fields would not only hamstring efforts to improve police accountability, but — given disturbing patterns across the U.S. — could also lead to unnecessary violence.”
Citing Hardiman’s case, they wrote that “the Third Circuit declined to adopt ‘a broad right to videotape police’ and embraced other cases that ‘imply that videotaping without an expressive purpose may not be protected.'”
“By perversely encouraging adversarial relations with police, Fields essentially requires civilians and photojournalists to risk police retaliation in order to exercise a constitutional right,” the EFF blog added. “Such retaliation often includes physical violence (as Ms. Geraci endured while being denied her right to record), arbitrary arrest, and contrived charges such as ‘assault on a police officer.'”