1A Case Law

CASE LAW ON FIRST AMENDMENT PROTECTIONS  

Lovell v. City of Griffin, 303 U.S. 444 (1938) — Finding: The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.

Stanley v. Georgia, 394 U.S. 557, 564 (1969) — Finding: Thurgood Marshall wrote the decision concluding that First Amendment rights are fundamental to American society, even if the information that is received has no social value. Unwanted government intrusions into an individual's privacy violate fundamental rights, except in narrow circumstances.

United States v. Cortez, 449 U.S. 411 (1981) — Finding: In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) – Finding: The court recognized a “First Amendment right to film matters of public interest” and that decided that no criminal act is constituted by “the recording of conversations held in a public street, in voices audible to passersby, by the use of a readily apparent recording device.”

Iacobucci v. Boulter, 193 F.3d 14 (1st Cir 1999) — Finding: Police lacked authority to prohibit citizen from recording commissioners in town hall "because [the citizen's] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights."

Smith v. City of Cumming 212 F.3d 1332 (11th Cir. 2000) — Finding: “[V]ideotaping or photographing the police in the performance of their duties on public property may be protected activit[ies].” As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.

Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009) — Finding: “Qualified immunity protects government from civil damages in a SS 1883 lawsuit insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Glik v. Cunniffe - 655 F.3d 78 (1st Cir. 2011) — Finding: “The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [the First Amendment].” The court noted that "we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties" and held that Glik had a constitutional right to videotape a public official in a public place. The court further noted that this was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. The First Circuit concluded that in the current case, none of those limitations applied. ("A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.")

ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) — Finding: "The act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording."

ACLU-Illinois v. Anita Alvarez, No. 11-1286 (7th Cir., 2012) — Finding: The Seventh Circuit reversed and remanded a District Court with instructions to enter a preliminary injunction blocking enforcement as applied to recording. The statute restricts a medium commonly used for communication of information and ideas, triggering First Amendment scrutiny. Any governmental interest in protecting conversational privacy is not implicated when officers are performing duties in public places. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute "very likely flunks." The law restricts more speech than necessary to protect legitimate privacy interests.

Riley v. California, 573 U.S. (2014) — Finding: Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

Turner v. Driver No. 16-10312 (5th Cir. 2017) — Finding: “First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.”

Fields v. City of Philadelphia - No. 16-1650 (3d Cir. 2017) — Finding: The court found no evidence that plaintiffs’ “conduct [recording police activity] may be construed as expression of a belief or criticism of police activity” noting that every circuit that has addressed the issue has found that “the First Amendment protects the act of photographing or otherwise recording police officers conducting their official duties in public.”