# Bitler v. ROBESON TOWNSHIP

> District Court, E.D. Pennsylvania · July 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10666888

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10666888

## How later opinions describe it (automated extraction)

- explaining that “the right to record matters of public concern is not absolute; it is subject to reasonable time, place, and manner restrictions”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________

TIMOTHY BITLER, SR., :
Plaintiff, :
:
v. : No. 5:24-cv-2177
:
ROBESON TOWNSHIP, :
Defendant. :
__________________________________________

O P I N I O N
Plaintiff’s Motion for a Preliminary Injunction, ECF No. 7 – Granted

Joseph F. Leeson, Jr. July 25, 2024
United States District Judge

I. INTRODUCTION
This case is about a Resolution adopted by vote of the Robeson Township Board of
Supervisors, which, inter alia, restricts the audio recording of Board gatherings before, after, and
during recesses of public meetings. Plaintiff Timothy Bitler, Sr., an elected supervisor of
Robeson Township, regularly records these meetings and uploads the recordings on YouTube for
public viewing. Bitler brings this action, and requests preliminary injunctive relief, claiming that
this Resolution suppresses speech and violates his First Amendment rights. Defendant Robeson
Township argues, among other things, that Bitler’s actions are not protected by the First
Amendment and the Resolution is a reasonable time, place, manner restriction of speech. For the
reasons discussed below, the Court will grant Bitler’s motion and issue a preliminary injunction.

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II. FINDINGS OF FACT1

Plaintiff Timothy Bitler, Sr., is a citizen and elected supervisor of Robeson Township of
Berks County, Pennsylvania. See Compl., ECF No. 1, ¶¶ 1-2. Every month at a building owned
by the Township, the Township Board of Supervisors holds public meetings to consider official
business and enact ordinances, resolutions, and policies pertaining to the Township. See id. ¶¶ 3,
10. Any member of the public may attend these meetings, offer public comment, or record the
meetings. See id. ¶ 10. Using a camera and tripod, Bitler records an audiovisual stream before,
during, and after every Board meeting, see id. ¶ 12, and he has done so continuously since the
Board stopped using Zoom to stream meetings in or around June of 2023. See Pl. Ex. A. Bitler
livestreams and uploads these recordings for public viewing on YouTube, meaning that the
recordings are available for anyone to watch live during the meetings and can continue to be
viewed on YouTube anytime thereafter. See id. Other than Bitler’s recordings, the only official
record of the meetings is the Board’s meeting minutes. See Compl. ¶ 11.
Bitler’s recordings document when the official meeting is in progress, as well as record

the public meeting room before, after, and during recesses of the meetings. At all times while
operating, the camera remains stationary in the public meeting room and visible to those in
attendance.2 Before every meeting, Bitler conspicuously posts a notice in the public meeting

1 The findings of fact are based on factual allegations in the Complaint, the briefs related to
the motion at issue, and the exhibits and testimony given during the preliminary injunction
hearing held on July 15, 2024. At the preliminary injunction hearing, counsel for both parties
presented argument and had the opportunity to call witnesses. Plaintiff Timothy Bitler, Sr.
testified. Richard Fix and Robert Caldwell, residents of Robeson Township, also testified on
behalf of Plaintiff. The Township did not call any witnesses.
2 It is undisputed that Bitler is not attempting to conceal his camera or record the Board’s
private conferences or executive sessions as defined under the Sunshine Act. Nor is Bitler
attempting to record or follow any individuals with his camera into any private places.

2
room that the meeting is being recorded and streamed to YouTube. See Pl. Ex. C. He also
announces to everyone in the room that recording is occurring. When the Board recesses the
public meetings to hold executive sessions under the Sunshine Act, 65 Pa.C.S. § 708(b), the
Board exits the public meeting room and Bitler continues to record the room. See id. ¶ 12.
Although the recording is not documenting the executive session, it picks up on interactions that

take place in the public meeting room, such as unofficial public comments and discussion among
meeting attendees, most of whom are Township residents, as well as comments audible in the
public meeting room made by elected officials on the way to and from the executive session. See
id. Sometimes these recorded conversations are related to Township issues, and sometimes they
are merely personal in nature.
On March 19, 2024, the Board adopted Resolution No. 24-06 (the “Resolution”) by
majority vote, which restricts the recording of Board gatherings before, after, and during the
recesses of public meetings, as well as during conferences and executive sessions. See Pl. Ex. B,
Res. No. 24-06 §§ (1)(B), (I). Specifically, the Resolution prohibits the recording of any

activities in the public meeting room that take place before or after the commencement of a
public meeting, during a recess of a public meeting, or during a conference or executive session
of the Board of Supervisors under the Sunshine Act. Id. § (1)(B). Pursuant to these restrictions,
a recording device cannot be operated “more than one minute prior to a meeting being called to
order, while a meeting is in recess, or more than one minute after a meeting is adjourned.” Id.
§ (1)(I). Anyone in violation of these rules is “subject to removal from the meeting” and “shall
not be permitted to continue recording the meeting in which the violation took place.” Id.
§ (1)(J). Bitler has been instructed on more than one occasion to turn off the audio of his camera
due to violation of the Resolution.

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III. LEGAL STANDARD

Preliminary Injunctions in First Amendment Cases – Review of Applicable Law

Plaintiffs seeking a preliminary injunction ordinarily “must show: (1) a likelihood of
success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that
granting preliminary relief will not result in even greater harm to the nonmoving party; and (4)
that the public interest favors such relief.” Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004); Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994). “However, in First
Amendment cases where ‘the government bears the burden of proof on the ultimate question of a
statute’s constitutionality, plaintiffs must be deemed likely to prevail for the purpose of
considering a preliminary injunction unless the government has shown that plaintiffs’ proposed
less restrictive alternatives are less effective than the statute.’” Reilly v. City of Harrisburg, 858
F.3d 173, 180 (3d Cir. 2017) (quoting Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)) (cleaned
up). In other words, in First Amendment cases, the burden shifts to the government to reflect
that at trial, the burden always rests with the government. See id. Therefore, a plaintiff’s burden
when seeking preliminary injunctive relief in a First Amendment case is limited to showing (1)
“the law restricts protected speech,” and (2) the restriction will likely cause “irreparable harm.”
See id. at 180 n.5. Once the plaintiff has met this burden, the burden shifts to the government to
“justify its restriction on speech under whatever level of scrutiny is appropriate[,]” either
intermediate or strict scrutiny. See id.
IV. CONCLUSIONS OF LAW

Bitler brought the instant motion seeking a preliminary injunction to suspend the
enforcement of the Resolution at issue while these proceedings are ongoing. Bitler argues that
the Resolution infringes on his First Amendment rights and causes irreparable injury. The
4
Township argues that Bitler has failed to show his actions fall within the purview of the First
Amendment, or alternatively, that the Resolution is a reasonable time, place, and manner
restriction of speech. As further discussed below, the Court finds that Bitler has met his burden
to show that First Amendment standards apply in this case, and, at this juncture the Township
has failed to show that the Resolution is narrowly tailored to serve a significant government

interest. Therefore, the Court grants Bitler’s request for preliminary injunctive relief.
Bitler has met his burden to show that the Resolution restricts protected speech. “The
First Amendment protects actual photos, videos, and recordings, and for this protection to have
meaning the Amendment must also protect the act of creating that material.” Fields v. City of
Philadelphia, 862 F.3d 353, 358 (3d Cir. 2017) (citing Brown v. Entm’t Merchants Ass’n, 564
U.S. 786, 790 (2011)) (explaining, in the context of recording police activity, that “[t]here is no
practical difference between allowing police to prevent people from taking recordings and
actually banning the possession or distribution of them”). See also ACLU v. Alvarez, 679 F.3d
583, 596 (7th Cir. 2012) (“Restricting the use of an audio or audiovisual recording device

suppresses speech just as effectively as restricting the dissemination of the resulting recording.”).
As explained by the Third Circuit in Fields v. City of Philadelphia, “[t]o record what there is the
right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for
objective facts.” See id. at 359. Additionally, although the First Amendment “does not carry
with it the unrestrained right to gather information[,]” it does promote news gathering and the
right of access to information generally. See PG Publ. Co. v. Aichele, 705 F.3d 91, 98-99 (3d
Cir. 2013) (internal marks and citations omitted).3 Here, Bitler’s recordings take place in a

3 The First Amendment standards and related case law that will aide in the ultimate
disposition of this case—whether based on content-neutral restrictions, public right of access,
5
public building and the subject of the recordings are public meetings, open for anyone to attend.
Recording the events of these meetings is therefore akin to news gathering or creation of a public
record for dissemination, certainly implicating the First Amendment, and restriction of this
recording is a form of speech suppression.
Additionally, Bitler has shown that the Resolution will likely cause irreparable harm.

Residents of the Township rely on Bitler’s recordings to generally stay apprised of public issues
and to witness the Board meetings on days when they cannot physically attend. As testified to
by two Township residents and Bitler himself, conversations that take place in the meeting room
before, after, and during recesses to public meetings are sometimes of public importance and
pertain to Township issues. Some of those conversations take place between public officials, or
public officials and residents. The Township residents and Bitler have expressed concern about
interactions that take place in the meeting room during the restricted times, such as alleged rude
comments from Township Supervisors or “official business” between Township Supervisors
taking place outside of the meetings. For all of those reasons, Bitler has shown a likelihood of

irreparable harm.
The burden thus shifts to the Township to justify its speech restriction under the
appropriate level of constitutional scrutiny, either strict or intermediate. Certain restrictions are
“presumptively unconstitutional and subject to strict scrutiny[,]” such as “[c]ontent-based laws”
and “prior restraints” of speech, whereas intermediate scrutiny is applied to “content-neutral
restrictions[.]” See In re Subpoena 2018R00776, 947 F.3d 148, 155 (3d Cir. 2020). The parties
disagree on which level of scrutiny the Court should apply to the speech restriction in this case.

prior restraints, or otherwise—remain in flux at this early stage of the proceedings and will be
decided at a later date by this Court after full fact discovery has taken place.
6
However, even if the Court assumes at this juncture that the Township carries the less stringent
burden under intermediate scrutiny of proving that the Resolution is “narrowly tailored to serve a
significant governmental interest[,]” see Bruni v. City of Pittsburgh, 941 F.3d 73, 84 (3d Cir.
2019), the Court finds that the Township has failed to meet this burden for the following reasons.
First, the Township argues, without citation, that “[t]here is no First Amendment right to

audio visually record people while no public meeting is taking place[,]” and attempts to shift the
burden to Bitler to prove that “such a right exists.” See Resp. at 7. However, as already
discussed above, case law supports that audiovisual recordings and their creation fall under First
Amendment purview, and therefore government restriction of audiovisual recording can
constitute suppression of speech. Additionally, although the Township stresses that the public
meetings are not in session during the restricted times, the Township does not address the
significance of the fact that the recordings are taking place in a public place with the members of
the public present. Residents of the Township have the right to observe how their elected
Township Supervisors conduct themselves in public places. While this right is not boundless,

the Township has failed at this juncture to prove that the Resolution is a reasonable time, place,
and manner restriction of speech. See Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir.
2010) (explaining that “the right to record matters of public concern is not absolute; it is subject
to reasonable time, place, and manner restrictions”). In this public place at these public
meetings, with members of the public present, the Township Supervisors are elected “public
officials carrying out public functions,” and allowing public observation, through audiovisual
means or otherwise, “promote[s] the access that fosters free discussion of governmental
actions[.]” See Fields, 862 F.3d at 362. Although the Township points out that, in lieu of the
audiovisual recording, note taking is permitted at the meetings, leaving open this alternative

7
channel does not meet the Township’s burden at this stage to show that the Resolution is
narrowly tailored to meet a significant government interest.4
Second, the Township argues, also without support, that “nonpublic officials”
“absolutely” have a “reasonable expectation of privacy . . . during times when a meeting isn’t
taking place.” See Resp. at 7. The Court is unpersuaded. The individuals attending these public

meetings are not only on notice that the meeting room is being recorded but, based on the sheer
fact of their attendance, are generally aware that the meetings take place in a public forum and
are open to other members of the public. Moreover, at the hearing on this Motion, the Township
cross-examined Township residents about the types of personal conversations taking place
during the restricted times. Examples of these conversations included weekend plans and
Phillies games. At no point has the Township shown that private, sensitive information has been
divulged by Bitler’s recordings, nor has the Township explained why it has a “significant
government interest” in protecting the personal conversations taking place. Therefore, the
Township has failed to meet its burden at this juncture to show that protection of individuals’

privacy in a public place is a significant government interest justifying the Resolution’s
restrictions.
V. CONCLUSION

For all of the reasons considered above, Bitler’s Motion for Preliminary Injunction is
granted, and the Township is enjoined from enforcing the challenged sections of the Resolution
pending final resolution of this matter.

4 In fact, the Township’s admission at oral argument that any person could attend the
meetings, or take and distribute detailed notes of any conversations that take place during the
restricted times, actually belies its argument that restriction of the audiovisual recording is
narrowly tailored to protect the privacy of “non-public officials.”
8
A separate Order follows.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.___
JOSEPH F. LEESON, JR.
United States District Judge

9

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666888. Public record. Not legal advice.