Court: U.S. Supreme Court
Date Filed: Oct. 12, 2023
Background: In 2015, attorneys Sarah Molina and Christina Vogel attended a protest in St. Louis wearing bright green hats identifying them as legal observers for the National Lawyers Guild. After law enforcement began using tear gas to enforce a dispersal order, the two attorneys retreated to Molina’s property a couple of blocks away. Officers later drove their armored police vehicle past the property and fired tear gas at the two attorneys.
Molina and Vogel sued the officers and their supervisor, as well as the city of St. Louis and St. Clair County, Illinois, alleging a violation of their right to observe police activity.
The district court denied the officers’ motion for summary judgment. However, a panel of the U.S. Court of Appeals for the Eighth Circuit later reversed, finding, in part, that the right to passively observe law enforcement activity in public is not clearly established. In its analysis, the Eighth Circuit panel concluded that an individual’s presence at an event must communicate a “particularized message” for the First Amendment to protect their decision to document the occasion.
Molina and Vogel, represented by the American Civil Liberties Union, then petitioned the U.S. Supreme Court to hear the case.
Our Position: The Supreme Court should grant the petition and summarily reverse the Eighth Circuit.
- The right to observe and document policing is of critical public importance.
- The right to observe and document policing follows “with obvious clarity” from the broader right to gather the news in public places.
Quote: “[T]he Eighth Circuit’s outlier approach would lead to the absurd conclusion that a law enforcement officer who intentionally retaliates against an individual for wearing clothing that reads “PRESS” has not retaliated against First Amendment activity if the reporter did not verbalize a pro- or anti-protest perspective.”
Related: In a recent installment of The Nuance, the Reporters Committee’s weekly newsletter, Technology and Press Freedom Project Director Gabe Rottman discussed why the Eighth Circuit’s decision is so problematic. “The Eighth Circuit is effectively saying that printed words identifying someone as a reporter are not speech at all under the First Amendment,” Rottman wrote. “That’s a truly dangerous theory for press rights and, indeed, journalist safety.”