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A Dangerous New Anti-First Amendment Ruling …




Up until last week, every American citizen had the right to photograph or film law enforcement officers as they pleased.  Doing so was deemed to be “expressive conduct” – or free speech expressly permitted under the First Amendment.

Technically this right still exists, although a recent federal court ruling has thrown it into some confusion … and created a flood of headlines questioning its validity.

U.S. district court judge Mark Kearney of Philadelphia – an appointee of U.S. president Barack Obama – ruled last week that the citizens may not photograph or film police absent some “expressive purpose such as challenging police actions.”

In other words, they cannot film police for purely observational purposes.

“We find no basis to craft a new First Amendment right based solely on ‘observing and recording’ without expressive conduct,” Kearney’s opinion state.


Last time we checked, such a right didn’t need “crafting,” it already existed.  Furthermore, confining the public’s right to record law enforcement officers along such narrow “expressive” lines amounts to the effective outlawing of police filming.

In fact one of the challenges Kearney’s opinion addressed involved someone whose camera was seized by law enforcement after videotaping another person’s arrest.

Experts blasted the ruling – and indicated it would likely be overturned when the case reached the U.S. third circuit court of appeals.

“The First Amendment protects silent gathering of information (at least by recording in public) for possible future publication as much as it protects loud gathering of information,” UCLA law professor Eugene Volokh said in response to the ruling.

Meanwhile the American Civil Liberties Union (ACLU) indicated it would file a suit to protect the public’s right to film police.

“The ability to criticize and hold accountable our public officials is critical to the First Amendment,” the organization stated.

We concur …

South Carolinians know better than most the importance of being able to film police in the aftermath of last spring’s fatal shooting of Walter Scott by North Charleston, S.C. police officer Michael Slager following a routine traffic stop.

Slager originally claimed he shot and killed Scott because the victim attempted to take his taser and use it against him – and North Charleston police repeatedly regurgitated this claim in an effort to justify Slager’s use of deadly force against Scott.  Slager claimed Scott’s threatening actions caused him to fear for his life, but the anonymous amateur video of the incident told a dramatically different story – depicting the officer firing eight times into Scott’s back as he fled the scene of the arrest.

The video also disproved Slager’s contention that he provided medical assistance to Scott after shooting him.

Once the video was made public, Slager was terminated from his position and charged with murder.

Would that have happened if the public had been banned from “observational” videotaping of police?

This website supports law enforcement.  Police provide a core function of government – an indispensable component of a free society built on individual liberty and private property rights.  Accordingly we should fund law enforcement commensurate with this responsibility, and not erect unnecessary barriers to them doing their jobs.  Having said that, one indispensable liberty is the public’s right to hold those with the power accountable when they discharge this accountability erroneously.

The balance in this case clearly falls on the side of free speech.