Sunday, April 17, 2016

Court decision on video taping police erodes First Amendment rights and transparency, invites violence and police retaliation

Signs of the Times
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A federal district court in Pennsylvania recently issued 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. 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. Criticism of the Fields decision emerged quickly, but focused mostly on its artificial distinction between what counts as protected "expression" under the First Amendment and what does not. Unfortunately, that fallacy is merely one among several that pervade the decision. Artificial Distinctions in the Law In previous cases emerging from across the country, appellate courts have held that the First Amendment "unambiguously" confers on civilians a right to record police activities, so long as they don't interfere with those activities. Both the First Circuit (in 2011, in Glik v. Cunniffe) and the Seventh Circuit (in 2012, in ACLU ofIllinois v. Alvarez) have established controlling precedents establishing that rule within their jurisdictions. As a result, residents of Boston and Chicago, for instance, are entitled to observe and record police unless they interfere with them.

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