- The Washington Times - Wednesday, February 24, 2016

Photographing police activity without “any stated purpose of being critical of the government” isn’t constitutionally protected, a federal judge in Philadelphia has ruled.

In a 21-page decision put out Friday by the U.S. District Court for the Eastern District of Pennsylvania, District Judge Mark Kearney dismissed First Amendment retaliation claims filed against the city of Philadelphia by two individuals who had been restrained while filming police in action.

Plaintiffs Amanda Geraci and Richard Fields alleged in a consolidated lawsuit that police infringed upon their right to free press and free speech during two separate incidents.

Ms. Geraci, a self-described “legal observer,” claimed she was physically restrained in 2012 while recording city police arresting demonstrators at a fracking protest, and Mr. Fields, a Temple University student, said he was detained and placed in a police van after attempting to take a photo of approximately 20 officers outside of a house party in 2014.

Judge Kearney, an appointee of President Obama, wrote that the court “instinctively understand[s]” the plaintiffs’ argument but found “no basis to craft a new First Amendment right based solely on ‘observing and recording’ without expressive conduct.”

The ruling suggests that either of the plaintiffs may have been able to successfully claim First Amendment violations if they made their intentions clear as they encountered police, but Judge Kearney wrote that neither offered an explanation for their activity.

Mr. Fields attested he used his cellphone to photograph the police outside a house party because “it was an interesting scene” and “would make a great picture.” On her part, Ms. Geraci said she was “just legal observing” an arrest when she was restrained by an officer and prevented from recording.

“The conduct must be direct and expressive; we cannot be left guessing as to the ‘expression’ intended by the conduct,” Judge Kearney wrote.

“Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is ‘sufficiently imbued with elements of communication’ to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message,” he added.

Attorneys for the plaintiffs plan to appeal the ruling, according to Eugene Volokh, a free speech attorney who blogs for The Washington Post. Meanwhile, Judge Kearney is allowing both plaintiffs to pursue other constitutional violation claims against the city.

“The citizens are not without remedy because once the police officer takes your phone, alters your technology, arrests you or applies excessive force, we proceed to trial on the Fourth Amendment claims,” he wrote.

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