Inquirer Editorial: People have a right to video cops

As an American living in the freest country on Earth, you might think that you have an absolute right to peacefully record the actions of police in public places.

Your thinking would find support from no less an authority than Philadelphia's recently retired police commissioner, Charles Ramsey. He told his officers in 2011 to expect to be recorded when performing duties in public.

But before you whip out your smart-phone camera, consider this: U.S. District Judge Mark A. Kearney has ruled in Philadelphia that you don't have an automatic First Amendment right to document the way police conduct themselves on public property.

If you want First Amendment protection, the judge ruled last month in two cases where Philadelphia cops allegedly abused citizens who video recorded them, you have to utter certain magic words.

In the judge's view, the First Amendment protects freedom of "expression." Unless the citizen who is recording police in public is somehow engaging in "expressive conduct," he ruled, the First Amendment does not apply.

In these two cases, the citizens allegedly being hassled by the cops didn't utter the kind of words the judge wanted to hear. They hadn't yet observed official misbehavior; they were just recording police because they thought they were free to do so.

Apparently they should have said something like, "I'm expressing myself by exercising my right to hold police accountable!"

So the citizens' claim for damages on First Amendment grounds got tossed out of court. (The two lawsuits are still alive on other grounds.)

As Judge Kearney noted, three federal appeals courts elsewhere in the country have ruled the opposite way from his decision. He contends those rulings aren't technically binding in federal courts covering Philadelphia, which is true, but it is a legalistic argument that a lower court judge might use when he wants to contradict an appeals court precedent.

In focusing on "expressive conduct," maybe the judge is looking at the wrong part of First Amendment. There's a passage that also protects the right "to petition the government for a redress of grievances." Part of that right is gathering information about whether government agents, operating in public, are doing something to have a grievance about.

The American Civil Liberties Union plans an appeal, so there's hope this convoluted ruling will be reversed. Unfortunately, it will take a while for this to be worked out in federal courts here.

Until then, if you want to video record police in action, remember to say the magic words Judge Kearney wants to hear. Something like "I'm engaging in expressive activity!" should do the trick.