A federal judge ruled that there is no First Amendment right to record the police unless the person affirmatively declares their right to do so. An excerpt:
“[U.S. District Court Judge] Kearney unconvincingly compares the act of recording the police without some clear articulation that you’re doing so for the purpose of protest or expression to refusing to move along when a police officer is trying to clear a sidewalk or roadway.
Judge Yohn’s cogent and exhaustive analysis in Montgomery v. Killingsworth applies a similar test for assessing conduct protected by the First Amendment. As Judge Yohn observed last year, “Peaceful criticism of a police officer performing his duties in a public place is a protected activity under the First Amendment.” Judge Yohn noted, “this protection, however, is not absolute.” Quoting the Supreme Court in Colten v. Kentucky, and as it relates to Fields, Judge Yohn found “conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment. “
Balko continues, “[I]t’s a pretty dangerous thing to say that you must explicitly declare your rights in order to have them respected.” Unfortunately, that danger is not entirely unprecedented. The good news is that recent First Amendment jurisprudence supports the photographers who will appeal and, hopefully, win.
For a broader discussion about the dos and don’ts of recording police misconduct, watch the event below featuring retired U.S. Marshal Matthew Fogg, Flex Your Rights founder Steve Silverman, and me.