A missed opportunity for the First Amendment right to record

As the Reporters Committee has argued in filing after filing, the right to record matters of public interest is essential to reporting the news in a world in which “the first source of information from the scene of a newsworthy event is often an average person with a smartphone.” And as we’ve explained, that right is especially vital in reporting on police encounters, a context in which journalists and bystanders have routinely “captur[ed] evidence that the initial official account of an event was incomplete.”

Most federal courts of appeals agree. But in an unfortunate decision last week, the U.S. Court of Appeals for the Tenth Circuit rejected an opportunity to join that consensus, granting immunity to police officers who knew full well — and had even been trained — that interfering with the right to record violates the Constitution.

The case, Frasier v. Evans, was a civil rights lawsuit brought by a man who was questioned, searched and threatened by Denver police officers after he filmed them repeatedly punching an arrestee in the face. As the Tenth Circuit noted, no party to the case had disputed that Frasier “had a First Amendment right to record the police performing their official duties in public spaces.” In fact, the Denver Police Department had been telling its officers as much since 2007, and every officer involved testified that they knew that Frasier had the right to record them.

Still, the Tenth Circuit noted, under Supreme Court precedent, the officers were entitled to qualified immunity unless they violated “clearly established statutory or constitutional rights of which a reasonable person would have known” — a test that looks at the knowledge of a hypothetical officer, not the one actually listed on the case caption. The Reporters Committee and 38 media organizations, represented by attorneys at Ballard Spahr, had filed a friend-of-the-court brief arguing that First Amendment first principles and the steady march of other courts’ decisions should have made the answer to this question obvious at the time.

No dice, the Tenth Circuit held, unpersuaded the consensus was clear enough. The court rejected, too, the suggestion that the police department’s own trainings provided evidence that a reasonable official would have understood the First Amendment’s requirements, insisting only judicial decisions can provide that clarity. Worse yet, because the court concluded that the right wasn’t clearly established, it declined to answer whether the right even exists — making it all the more difficult for the next journalist or bystander to vindicate it in the Tenth Circuit in the future.

In theory, qualified immunity is grounded, in part, in fair-notice concerns — the view that officials shouldn’t be hit by surprise liability when the law changes under their feet. And (again in theory) the courts’ preference for approaching that question through the lens of a hypothetical officer is intended to avoid difficult, fact-sensitive inquiries into any particular officer’s motives.  It’s hard to see how either of those concerns are at stake when a city has accurately trained its officers on what the First Amendment requires and they violate that clear instruction regardless.

We’re disappointed in this outcome, but we’ll continue advocating for the right to record as more courts face opportunities to uphold it.

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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.