Every federal court of appeals to address the question agrees: You have a First Amendment right to record law enforcement officials performing their duties in public. Still, as readers of this newsletter know, the U.S. Court of Appeals for the Tenth Circuit concluded this year that a reasonable police officer might not know that — and therefore granted immunity from suit to officers who did, in fact, know from their training that they were violating the Constitution when they retaliated against a man who recorded them using excessive force against an arrestee.
The plaintiff in that case, Frasier v. Evans, has now asked the U.S. Supreme Court to review the Tenth Circuit’s decision. Building on the support we provided in the lower court, the Reporters Committee has filed a brief on behalf of 44 media organizations in support of the petition.
As our brief explains, we think the Tenth Circuit got the law badly wrong. Officers are entitled to qualified immunity if the illegality of what they did wasn’t clearly established at the time, but a plaintiff doesn’t need to point to a past case addressing the exact fashion in which their rights were violated to overcome that hurdle — not, the Supreme Court has explained, if established precedent applies with “obvious clarity” to the question presented.
That’s why the U.S. Court of Appeals for the Eighth Circuit, for instance, had no difficulty concluding this year that no reasonable officer could think it was constitutional to “deploy a tear-gas canister at law-abiding reporters,” even though the court had never confronted a case that specifically involved reporters suffering retaliation “while peacefully filming a protest.” Some things are obvious enough that they go without saying.
In our view, the right to record is plainly covered by that principle. The Supreme Court has already explained that both “the creation and dissemination of information are speech within the meaning of the First Amendment.” Which makes sense: How meaningful would a right to exhibit movies be if there were no right to film them, or the right to publish books without the right to write them? As a result, the Court has held, “[w]hether government regulation applies to creating, distributing, or consuming speech makes no difference” to the First Amendment analysis. The Tenth Circuit’s conclusion could make sense, then, only in a world in which either video as a medium or newsgathering as a stage of the communicative process were entirely unprotected by the Constitution. But the Supreme Court settled both those questions ages ago.
Unfortunately, the Tenth Circuit’s approach was characteristic of what we see as a deeper problem with the way lower courts handle the qualified-immunity analysis. Too often, courts approach newsgathering claims as if they were especially exotic, complicated or suspect, ratcheting up the difficulty plaintiffs face in overcoming an immunity defense. But the right to gather the news is entitled to just as much protection as any other First Amendment right, and it deserves the shelter of ordinary constitutional standards — including the right against retaliation.
The plaintiff’s petition also asks the Supreme Court to overturn the Tenth Circuit’s conclusion that the officers’ training was irrelevant to the analysis of whether their conduct violated clearly established rights. We’ll keep readers updated on any action the Court takes in this case.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.