On Friday, July 7, the United States Court of Appeals for the Third Circuit concluded that photographing, filming, or otherwise recording police activity in public “falls squarely within the First Amendment right of access to information.” With this holding, the Third Circuit joined the “growing consensus,” of the Circuit Courts of Appeal: the First, Fifth, Seventh, Ninth and Eleventh Circuits have previously reached the same conclusion.

In Fields v. City of Philadelphia, No. 16-1650 (3d Cir. July 7, 2017), the Court addressed the claims of two plaintiffs. The first, Amanda Geraci, filmed police arresting a protester at a 2012 anti-fracking protest in Philadelphia. After she began filming, an officer pinned her against a wall, preventing her from recording the arrest. The second, Richard Fields, used his iPhone to take a photograph of police breaking up a 2013 party. An officer saw Fields taking a photograph and arrested him, issuing Fields a citation. Neither Fields nor Geraci interfered with the police.

The district court dismissed the plaintiffs’ § 1983 claims, concluding that the plaintiffs’ activities were not protected because merely recording or photographing police—without criticizing police conduct—had no expressive component.

The Third Circuit rejected the lower court’s reasoning. The Court held the First Amendment protects actual photographs, videos and recordings, and the act of creating that material. The Court held that the First Amendment right of access to information protects “recording police activity in public.” The Court noted that while this right is not absolute, and is subject to reasonable time, place and manner restrictions, the facts before it did not require it to flesh out the limits of this right because neither plaintiff interfered with police activity.

Although the Court concluded the plaintiffs’ activity was protected, it concluded the officers were entitled to qualified immunity because the right was not “clearly established” at the time of the incidents. The Court remanded for the district court to determine whether the City should be held liable for the officers’ conduct.