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Federal court in Virginia recognizes Bivens First Amendment claim for right-to-record violation

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  1. First Amendment
Bivens claims allow plaintiffs to sue federal officers in their personal capacities for violations of certain constitutional rights.

On the heels of the Reporters Committee’s involvement in two recent cases concerning First Amendment damages claims against federal officers, we’re monitoring another case involving the crucial question of whether so-called Bivens remedies are available for violations of the First Amendment right to document government activity in public (the Volokh Conspiracy noted it the other week).

Bivens claims allow plaintiffs to sue federal officers in their personal capacities for violations of certain constitutional rights, pursuant to a 1971 Supreme Court ruling. That’s exactly what Dustin Dyer did in 2019 after Transportation Security Administration agents forced him to stop recording a pat-down search of his husband and delete the video. Dyer later restored the deleted video and sued the TSA agents, alleging their order that he stop recording and delete the file violated his First and Fourth Amendment rights.

In the Eastern District of Virginia last month, the agents filed a motion to dismiss Dyer’s claims. They argued that Bivens claims are unavailable under the First Amendment, and, even if they are, that the agents are protected under the doctrine of qualified immunity, which requires that a right be “clearly established” before a plaintiff can proceed under Bivens. The court denied the defendants’ motion to dismiss, holding against the defendants on both counts.

First, the court found that, even though Bivens First Amendment claims arise in a “new context” (because the Supreme Court has never expressly recognized the existence of a Bivens action for First Amendment violations), there was no reason for the court to exercise caution here. In other words, permitting suits against the individual officers would not raise the kinds of separation-of-powers concerns that militate against recognizing Bivens relief.

Then, the court found that the right to record government activity in public is “clearly established” (effectively that the TSA agents should have been aware of it) and therefore the agents are not entitled to qualified immunity. That holding is particularly important given that the U.S. Court of Appeals for the Fourth Circuit — which covers the district courts in Virginia — has not yet recognized the right to record as clearly established. Were this case to go up on appeal, it could be one where the Fourth Circuit does so.

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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.