Amicus Curiae Brief — Levi Frasier, Petitioner v. Christopher L. Evans, et al.
Supreme Court briefAug 13, 2021
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No. 21-57
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------LEVI FRASIER,
Petitioner,
v.
CHRISTOPHER L. EVANS et al.,
Respondents.
---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE FIRST AMENDMENT
SCHOLARS IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------MATTHEW R. CUSHING
Instructor, Appellate
Advocacy Practicum
UNIVERSITY OF COLORADO
LAW SCHOOL
2450 Kittredge Loop Road
Boulder, CO 80309
(303) 735-6554
matthew.cushing@
colorado.edu
TINA R. VAN BOCKERN
Counsel of Record
JONATHAN S. BENDER
THOMAS A. MORALES
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
(303) 295-8000
trvanbockern@hollandhart.com
jsbender@hollandhart.com
tamorales@hollandhart.com
Counsel for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
ii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
5
I.
The First Amendment Protects The Right
To Record Police Officers Performing Public Duties In Public Locations ...................
6
A. Public-Cubed Recordings Are A Form of
Expression And Protected As Speech ....
7
B. Public-Cubed Recordings Are Critical
To The Speech-Creation Process ......... 11
C. Public-Cubed Recordings Are Vital To Exercising The First Amendment-Protected
Newsgathering Right .......................... 14
II.
This Case Avoids Privacy Concerns And,
Thus, Is Ideal For Clarifying That There Is
A Right To Record In Public-Cubed Settings ........................................................... 22
III.
The Court Should Grant Certiorari To
Safeguard Public-Cubed Recordings In All
Jurisdictions .............................................. 23
CONCLUSION..................................................... 26
ii
TABLE OF AUTHORITIES
Page
CASES
Abrams v. United States, 250 U.S. 616 (1919) ...........15
ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.
2012) ................................................................ passim
Anderson v. City of Hermosa Beach, 621 F.3d
1051 (9th Cir. 2010) ........................................... 13, 14
Barnes v. Glen Theatre, 501 U.S. 560 (1991) ................8
Bartnicki v. Vopper, 532 U.S. 514 (2001) ....................22
Branzburg v. Hayes, 408 U.S. 665 (1972) ...................15
Buehrle v. City of Key West, 813 F.3d 973 (11th
Cir. 2015) .................................................................11
City of Houston v. Hill, 482 U.S. 451 (1987) ..... 9, 17, 19
City of Ladue v. Gilleo, 512 U.S. 43 (1994) .................15
Craft v. Billingslea, 459 F. Supp. 3d 890 (E.D.
Mich. 2020) ............................................................ 4, 5
Dyer v. Smith, Civil Action No. 3:19-cv-921, 2021
U.S. Dist. LEXIS 34090 (E.D. Va. Feb. 23,
2021) ........................................................................24
Fields v. City of Philadelphia, 862 F.3d 353 (3d
Cir. 2017) ....................................................... 6, 23, 24
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.
1995) .............................................................. 6, 23, 24
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) ...... 6, 23, 24
Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ... 6, 17, 23, 24
iii
TABLE OF AUTHORITIES—Continued
Page
Globe Newspaper Co. v. Superior Court, 457 U.S.
596 (1982) .......................................................... 16, 17
Griswold v. Connecticut, 381 U.S. 479 (1965) ............11
Hague v. Comm. for Indus. Org., 307 U.S. 496
(1939) .......................................................................17
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) .................................................12
Hulbert v. Pope, No. SAG-18-00461, 2021 U.S.
Dist. LEXIS 77897 (D. Md. Apr. 22, 2021) ..............24
Kerr v. City of Boulder, Civil Action No. 19-cv01724-KLM, 2021 U.S. Dist. LEXIS 114207
(D. Colo. June 18, 2021) ..........................................25
Lewis v. City of New Orleans, 415 U.S. 130 (1974) .........9
Luis v. United States, 136 S. Ct. 1083 (2016) .............12
Mills v. State of Ala., 384 U.S. 214 (1966) ..................17
N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) ..... 3, 16
Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of
Cal., 475 U.S. 1 (1986) .............................................15
Press-Enterprise Co. v. Superior Court, 464 U.S.
501 (1984) ................................................................16
Press-Enterprise Co. v. Superior Court, 478 U.S.
1 (1986) ....................................................................16
Project Veritas Action Fund v. Rollins, 982 F.3d
813 (1st Cir. 2020) ...................................................17
Richmond Newspapers Inc. v. Virginia, 448 U.S.
555 (1980) .................................................... 15, 16, 17
iv
TABLE OF AUTHORITIES—Continued
Page
Rumsfeld v. Forum for Acad. & Inst. Rts., Inc.,
547 U.S. 47 (2006) .....................................................8
Smith v. City of Cumming, 212 F.3d 1332 (11th
Cir. 2000) ....................................................... 6, 23, 24
Spence v. Washington, 418 U.S. 405 (1974) ........ 7, 8, 21
Texas v. Johnson, 491 U.S. 397 (1989) ..........................8
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393
U.S. 503 (1969) ...................................................... 7, 8
Turner v. Driver, 848 F.3d 678 (5th Cir. 2017) ..... 6, 23, 24
CONSTITUTIONAL PROVISIONS
U.S. Const., amend. I .......................................... passim
STATUTES
Haw. Rev. Stat. § 710-1010(2)(c) (2021)......................18
N.Y. Civ. Rights Law § 79-p(2) (2021) ........................18
Utah Code § 76-8-305(2) (2021) .................................18
RULES
Supreme Court Rule 37.2(a).........................................1
v
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
Al Baker et al., Beyond the Chokehold: The Path
to Eric Garner’s Death, N.Y. TIMES (June 13,
2015), http://www.nytimes.com/2015/06/14/ny
region/eric-garner-police-chokehold-statenisland.html ..............................................................20
Alexander Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT (1948) .......................18
Allissa Richardson, BEARING WITNESS WHILE
BLACK: AFRICAN AMERICANS, SMARTPHONES,
AND THE NEW PROTEST #JOURNALISM (Oxford
Univ. Press 2020) .............................................. 10, 20
Ashutosh Bhagwat, Producing Speech, 56 WM.
& MARY L. REV. 1029 (2015) ...................................12
Barry P. McDonald, The First Amendment and
the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age, 65 OHIO ST. L.J. 249 (2004) .................16
C. Edwin Baker, Autonomy and Free Speech,
CONST. COMMENT. 251 (2011) ..................................10
C. Edwin Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. REV. 964
(1978) .......................................................................12
Cheryl Corley, How Using Videos At Chauvin
Trial and Others Impacts Criminal Justice,
NPR (May 7, 2021, 10:28 AM ET) https://
www.npr.org/2021/05/07/994507257/how-usingvideos-at-chauvin-trial-and-others-impactscriminal-justice .........................................................4
vi
TABLE OF AUTHORITIES—Continued
Page
Clay Calvert, The First Amendment Right to
Record Images of Police in Public Places: The
Unreasonable Slipperiness of Reasonableness
& Possible Paths Forward, 3 TEX. A&M L. REV.
131 (2015) .......................................................... 14, 15
Clay Calvert, The Right to Record Images of Police in Public Places: Should Intent, Viewpoint,
or Journalistic Status Determine First
Amendment Protection?, 64 UCLA L. REV. DISCOURSE 230 (2016) ...................................................14
Craig Timberg, Drew Harwell & Spencer S. Hsu,
Police Let Most Capitol Rioters Walk Away.
But Cellphone Data And Videos Could Now
Lead To More Arrests., WASH. POST (Jan. 8,
2021, 5:37 PM), https://www.washingtonpost.com/
technology/2021/01/08/trump-mob-tech-arrests/ .......21
David A. Strauss, Persuasion, Autonomy, and
Freedom of Expression, 91 COLUM. L. REV. 334
(1991) .......................................................................10
FIRST AMENDMENT WATCH, A CITIZEN’S GUIDE TO
RECORDING THE POLICE (N.Y. Univ. 2020),
https://firstamendmentwatch.org/wp-content/
uploads/2020/06/Citizens-Guide-to-Recordingthe-Police-2.pdf.................................................. 23, 24
vii
TABLE OF AUTHORITIES—Continued
Page
Jake Steiner, Streaming Revolution: Protestors
Make Point with Viral Clips, ASSOCIATED PRESS
(June 15, 2020), https://apnews.com/article/
new-york-ny-state-wire-nyc-wire-rodney-kingsocial-media-1819708dc4fbfc920e1874b4517a
66c4 ............................................................................9
Jane Bambauer, Is Data Speech?, 66 STAN. L.
REV. 57 (2014) .............................................. 10, 12, 14
Joanna Stern, They Used Smartphone Cameras
to Record Police Brutality—and Change History, WALL ST. J. (June 13, 2020, 12:01 AM),
https://www.wsj.com/articles/they-used-smart
phone-cameras-to-record-police-brutalityandchange-history-11592020827 ...................... 12, 19, 21
Jocelyn Simonson, Beyond Body Cameras: Defending a Robust Right to Record the Police,
104 GEO. L.J. 1559 (2016) ..................................... 6, 9
Jocelyn Simonson, Copwatching, 104 CALIF. L.
REV. 391 (2016) .............................................. 9, 19, 20
Joe Hernandez, Darnella Frazier, Teen Who
Filmed George Floyd’s Murder, Wins Pulitzer
Prize, NPR (June 11, 2021, 4:05 PM ET),
https://www.npr.org/2021/06/11/1005601724/
darnella-frazier-teen-who-filmed-george-floydsmurder-wins-pulitzer-prize-citati ...........................19
Justin Marceau & Alan K. Chen, Free Speech
and Democracy in the Video Age, 116 COLUM.
L. REV. 991 (2016) ........................................... passim
viii
TABLE OF AUTHORITIES—Continued
Page
Ken Stone, SDPD Chief Announces Immediate
Ban on Chokeholds; Move Called ‘Historic’,
TIMES OF SAN DIEGO (June 1, 2020), https://
timesofsandiego.com/crime/2020/06/01/sdpd-chieftells-immediate-ban-on-chokeholds-move-calledhistoric/ ......................................................................3
Marc Jonathan Blitz, The Fourth Amendment
Future of Public Surveillance: Remote Recording and Other Searches in Public Space, 63
AM. U. L. REV. 21 (2013) .........................................15
Marc Jonathan Blitz, The Right to Map (and
Avoid Being Mapped): Reconceiving First
Amendment Protection for Information-Gathering in the Age of Google Earth, 14 COLUM.
SCI. & TECH. L. REV. 115 (2013) ..............................14
Margot E. Kaminski, Privacy and the Right to
Record, 97 B.U. L. REV. 167 (2017) ..................... 6, 22
Martin H. Redish, The Value of Free Speech, 130
U. PA. L. REV. 591 (1982) ........................................10
Michael Levenson & Bryan Pietsch, Maryland
Passes Sweeping Police Reform Legislation,
N.Y. TIMES (Apr. 10, 2021), https://www.nytimes.
com/2021/04/10/us/maryland-police-reform.html .........3
Mobile Fact Sheet, PEW RESEARCH CENTER (Apr.
7, 2021), https://www.pewresearch.org/internet/
fact-sheet/mobile/ ......................................................4
ix
TABLE OF AUTHORITIES—Continued
Page
NBC Washington (@nbcwashington), TWITTER
(Jan. 15, 2021, 4:30 PM), https://twitter.com/
nbcwashington/status/1350223773270736899 ......21
Neil M. Richards, Intellectual Privacy, 87 TEX. L.
REV. 387 (2008) ........................................................22
Rachel Treisman, Man Charged With Assault
On Officer, As Seen In Viral Video From Capitol Riot, NPR (Jan. 20, 2021, 5:30 PM ET),
https://www.npr.org/2021/01/20/958896072/
rioter-charged-with-assaulting-officer-inincident-captured-on-viral-vi ....................................4
Reha Kansara, Black Lives Matter: Can Viral
Videos Stop Police Brutality?, BBC (July 6,
2020), https://www.bbc.com/news/blogs-trending53239123 ........................................................... 10, 20
Richard Pérez-Peña & Timothy Williams, Glare
of Video is Shifting Public’s View of Police,
N.Y. TIMES (July 30, 2015) ......................................20
Robert Post, Encryption Source Code and the
First Amendment, 15 BERKELEY TECH. L.J. 713
(2000) .......................................................................13
Robert Post, Participatory Democracy and Free
Speech, 97 VA. L. REV. 477 (2011) ...........................10
Saja Hindi, Here’s What Colorado’s Police Reform Bill Does, DENVER POST (June 13, 2020)
https://www.denverpost.com/2020/06/13/coloradopolice-accountability-reform-bill/ ........................... 3, 4
Scott Skinner-Thompson, Recording as Heckling, 108 GEO. L.J. 125 (2019) ......................... passim
x
TABLE OF AUTHORITIES—Continued
Page
Seth F. Kreimer, Pervasive Image Capture and
the First Amendment: Memory, Discourse and
the Right to Record, 159 U. PA. L. REV. 335
(2011) ............................................................... passim
The 2021 Pulitzer Prize Winner in Special Citations and Awards—Darnella Frazier, Pulitzer
Prizes, https://www.pulitzer.org/winners/darnellafrazier (last visited July 26, 2021) ..............................9
1
INTEREST OF AMICI CURIAE1
Amici curiae are professors who teach, research,
and publish on the First Amendment and privacy law.
A complete list of amici’s names, titles, and affiliations2
follows:
Ashutosh Bhagwat is a Distinguished Professor
of Law at the University of California at Davis School
of Law.
Marc J. Blitz is the Alan Joseph Bennett Professor of Law at Oklahoma City University School of Law.
Clay Calvert is Professor of Law and the Brechner
Eminent Scholar in Mass Communication at the University of Florida, where he also directs the Marion B.
Brechner First Amendment Project.
Erwin Chemerinsky is the Dean and Jesse H.
Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.
1
Pursuant to Supreme Court Rule 37.2(a), counsel of record
for all parties received timely notice of the intent to file this amicus brief. Petitioner Levi Frasier filed a blanket consent to the
filing of all amicus briefs in support of certiorari on July 21, 2021.
All respondents have provided written consent to the filing of this
brief. No counsel for a party authored this brief in whole or in
part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No
person other than amici and their counsel made a monetary contribution to its preparation or submission.
2
The listing of these affiliations does not imply any endorsement of the view expressed herein by amici’s institutions.
2
Alan K. Chen is the Thompson G. Marsh Law
Alumni Professor of Law at the University of Denver
Sturm College of Law.
Margot E. Kaminski is an Associate Professor of
Law at the University of Colorado Law School.
Justin Marceau is the Brooks Institute Faculty
Research Scholar of Animal Law and Policy at the University of Denver Sturm College of Law.
Helen Norton holds the Rothgerber Chair in Constitutional Law at the University of Colorado School of
Law.
Jocelyn Simonson is a Professor of Law at
Brooklyn Law School.
Scott Skinner-Thompson is an Associate Professor of Law at the University of Colorado Law School.
Amici present this brief to analyze the doctrinal
and theoretical underpinnings of the clearly established First Amendment right to record public officials
performing public duties in public locations—the socalled “public-cubed” pattern presented by this case—
and to impress upon the Court the importance of
granting certiorari and establishing a uniform rule
protecting that right nationwide.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
This Court should grant certiorari and clarify that
the First Amendment protects the rights of individuals
3
to record police officers performing public duties in
public spaces.
The First Amendment’s core purpose is to protect
and promote the unfettered dissemination and discussion of ideas to bring about social, political, and legal
changes desired by the people. See N.Y. Times Co. v.
Sullivan, 376 U.S. 254, 269-70 (1964) (citing cases). In
recent years, recording public officials performing public duties in public spaces has been the vehicle through
which citizens have promoted this core reform purpose.
For example, citizens’ recordings of police misconduct
and other events of national importance involving law
enforcement (i.e., the recording of the homicide of
George Floyd, social justice protests, and the January
6, 2021 U.S. Capitol riot), have pushed governments
across the country to make significant changes in their
policies and laws, including banning the police from using chokeholds, see Ken Stone, SDPD Chief Announces
Immediate Ban on Chokeholds; Move Called ‘Historic’,
TIMES OF SAN DIEGO (June 1, 2020), https://timesofsan
diego.com/crime/2020/06/01/sdpd-chief-tells-immediateban-on-chokeholds-move-called-historic/; reforming policing practices, see Michael Levenson & Bryan Pietsch,
Maryland Passes Sweeping Police Reform Legislation,
N.Y. TIMES (Apr. 10, 2021), https://www.nytimes.com/
2021/04/10/us/maryland-police-reform.html; and eliminating qualified immunity for police officers sued in
their individual capacities in state courts for violating civil rights, Saja Hindi, Here’s What Colorado’s
Police Reform Bill Does, DENVER POST (June 13, 2020),
4
https://www.denverpost.com/2020/06/13/colorado-policeaccountability-reform-bill/. These recordings have also
served as key evidence in investigating those suspected of unlawful behavior, whether it be in cases of
law enforcement accused of misconduct or instances in
which police officers lawfully perform their duties and
protect their communities. See, e.g., Cheryl Corley, How
Using Videos At Chauvin Trial and Others Impacts
Criminal Justice, NPR (May 7, 2021, 10:28 AM ET)
https://www.npr.org/2021/05/07/994507257/how-usingvideos-at-chauvin-trial-and-others-impacts-criminaljustice (“the protests and court proceedings after
[George Floyd’s] murder in Minneapolis might never
have happened without a bystander’s video”); Rachel
Treisman, Man Charged With Assault On Officer, As
Seen In Viral Video From Capitol Riot, NPR (Jan. 20,
2021, 5:30 PM ET), https://www.npr.org/2021/01/20/
958896072/rioter-charged-with-assaulting-officer-inincident-captured-on-viral-video (“A Connecticut man
has been charged with assaulting an officer during the
breach of the U.S. Capitol in an incident captured on
video and shared widely on social media.”).
Today, millions of Americans—roughly 85%—have
smartphones with the ability to make audiovisual
recordings. See Mobile Fact Sheet, PEW RESEARCH
CENTER (Apr. 7, 2021), https://www.pewresearch.org/
internet/fact-sheet/mobile/. Given the omnipresence of
smartphones and online streaming platforms, there
are countless ways for citizens to utilize recording devices and contribute to public discourse on moral, political, and social issues. See Craft v. Billingslea, 459
5
F. Supp. 3d 890, 910 (E.D. Mich. 2020) (“Cell phone use,
especially to document everyday encounters, has become ubiquitous in the twenty-first century . . . and
citizens increasingly choose to record interactions they
witness or experience with the police.”).
That is why it is imperative that this Court clarify
that the right to record in public-cubed settings, which
serves a critical democratic function, is protected by
the First Amendment.
---------------------------------♦---------------------------------
ARGUMENT
Public-cubed recordings can be viewed through
three lenses: as an inherently expressive activity, see
part I.A; as part of the speech-creation process, see part
I.B.; or as necessary to exercise the First Amendmentprotected right of newsgathering, see part I.C. Under
any of these lenses, recording is protected by long-established First Amendment caselaw. This case is an
ideal vehicle to address this issue, as the public-cubed
setting does not pose any line-drawing problems between the right to privacy and the First Amendment.
See part II. And it is untenable that the right to record,
so critical to our modern democratic process, differs
based on the jurisdiction within which the recording
was performed. See part III. Accordingly, certiorari is
warranted.
6
I.
The First Amendment Protects The Right
To Record Police Officers Performing Public Duties In Public Locations.
Recording in public-cubed settings is protected by
the First Amendment as: (a) expression itself, (b) a step
in the process of creating speech, and (c) a newsgathering function. See Jocelyn Simonson, Beyond Body
Cameras: Defending a Robust Right to Record the Police, 104 GEO. L.J. 1559, 1570 (2016) (noting the “general consensus” among First Amendment scholars
“that to record an official in public implicates the First
Amendment because it is either expressive conduct itself or conduct that is essentially preparatory to
speech”); Margot E. Kaminski, Privacy and the Right
to Record, 97 B.U. L. REV. 167, 177 (2017) (discussing
the doctrinal, theoretical, and practical reasons why
“[r]ecording should be protected under the First
Amendment”).3
3
That is why, as the petition rightly points out, the circuit
courts that have addressed the issue (other than the Tenth Circuit in the present case) have agreed that the First Amendment
protects the right to record in the public-cubed setting. Pet. at 2325, 27 & n.6; see, e.g., Fields v. City of Philadelphia, 862 F.3d 353,
356 (3d Cir. 2017); Turner v. Driver, 848 F.3d 678, 688 (5th Cir.
2017); Gericke v. Begin, 753 F.3d 1, 7-8 (1st Cir. 2014); ACLU of
Ill. v. Alvarez, 679 F.3d 583, 608 (7th Cir. 2012); Glik v. Cunniffe,
655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming, 212
F.3d 1332, 1333 (11th Cir. 2000); Fordyce v. City of Seattle, 55
F.3d 436, 439 (9th Cir. 1995).
7
A. Public-Cubed Recordings Are A Form
of Expression And Protected As Speech.
The act of recording police officers performing public duties in public locations is an expressive activity,
rather than mere conduct. Justin Marceau & Alan K.
Chen, Free Speech and Democracy in the Video Age, 116
COLUM. L. REV. 991, 1013-15 (2016). Some scholarship
regards recording in public-cubed circumstances as silent, dissenting expression. Simonson, 104 GEO. L.J. at
1573 (“[L]ike cursing, the protection of open recording
is supported by First Amendment values in part because it is a provocative form of expression—it allows
civilians to challenge government authority on their
own terms.”); Scott Skinner-Thompson, Recording as
Heckling, 108 GEO. L.J. 125, 140 (2019) (“The act of recording operates as an assertion of the recorder’s
agency toward the object being filmed—often the government—establishing the recorder’s independence
through the communicative act of recording qua resisting.”); Seth F. Kreimer, Pervasive Image Capture and
the First Amendment: Memory, Discourse and the Right
to Record, 159 U. PA. L. REV. 335, 339 (2011) (“In today’s
world, personal image capture is part of a medium of
expression entitled to First Amendment cognizance.”).
Although the First Amendment protects the freedom of “speech,” the Court has long applied the First
Amendment’s protections to nontraditional forms of
expression and conduct. See, e.g., Spence v. Washington,
418 U.S. 405, 406 (1974) (placing peace signs made of
black tape on an American flag and displaying it publicly was “speech”); Tinker v. Des Moines Indep. Cmty.
8
Sch. Dist., 393 U.S. 503, 505-06 (1969) (wearing black
armbands to protest the Government’s policy in Vietnam “was closely akin to ‘pure speech’ which, [the
Court has] repeatedly held, is entitled to comprehensive protection under the First Amendment.”).
In deciding whether certain conduct “possesses
sufficient communicative elements to bring the First
Amendment into play,” Texas v. Johnson, 491 U.S. 397,
404 (1989), the Court has typically, but not always, focused on whether the actor’s non-verbal conduct has
“[a]n intent to convey a particularized message[.]”
Spence, 418 U.S. at 410-11; see also Johnson, 491 U.S.
at 404. “[T]he requirement of identifying a ‘message
conveyed’ is generally applied by the Court only to conduct that is not considered ‘inherently expressive.’ ”
Kreimer, 159 U. PA. L. REV. at 372 (citing Rumsfeld v.
Forum for Acad. & Inst. Rts., Inc., 547 U.S. 47 (2006));
see also Barnes v. Glen Theatre, 501 U.S. 560, 577 n.4
(1991) (“inherently expressive” conduct is “conduct
that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone
else.”).
Public-cubed recordings are “inherently expressive” conduct protected by the First Amendment; however, even if the Court were to apply the “message
conveyed” test to public-cubed recordings, they would
still be protected First Amendment speech. For example, citizen recordings of police officers can serve “as an
in-the-moment form of expressive resistance to government officials—communicating a message of critique,
influencing official behavior, and reclaiming public
9
space for the people.” Skinner-Thompson, 108 GEO. L.J.
at 127 (footnotes omitted); see also Simonson, 104 GEO.
L.J. at 1573 (“Pointing a smartphone at a police officer
in public is a statement to that officer; it can serve as
a symbol of quiet defiance.”). Such recordings are inherently expressive even if no one else is present to
view the act of recording. The officers are the intended
audience and the Court has protected the First Amendment right to speak to law enforcement officers. See
City of Houston v. Hill, 482 U.S. 451, 461-62 (1987);
Lewis v. City of New Orleans, 415 U.S. 130, 131-32
(1974). Officers understand recordings to be expressive
conduct, which is why officers sometimes have negative reactions to being recorded. See Jocelyn Simonson,
Copwatching, 104 CALIF. L. REV. 391, 440 (2016) (“As
much as police departments are starting to realize the
importance of respecting cameras, incidents of bad reactions to filming police continue. . . .”).
In the context of Darnella Frazier’s recording of
George Floyd’s death at the hands of former police
officer Derek Chauvin,4 and others’ recordings of the
Black Lives Matter movement,5 social commentators
4
See The 2021 Pulitzer Prize Winner in Special Citations and
Awards—Darnella Frazier, PULITZER PRIZES, https://www.pulitzer.
org/winners/darnella-frazier (last visited July 26, 2021).
5
See Jake Steiner, Streaming Revolution: Protestors Make
Point with Viral Clips, ASSOCIATED PRESS (June 15, 2020), https://
apnews.com/article/new-york-ny-state-wire-nyc-wire-rodney-kingsocial-media-1819708dc4fbfc920e1874b4517a66c4 (“[T]he ubiquity of smart phones during nationwide protests in recent weeks
has provided a window into protesters’ interactions with officers
unimaginable to past generations of Americans.”).
10
have recognized the importance of recording police officers performing public duties in public locations. In
addressing video recordings that document police killings of citizens, one commenter opined that “Black people pick up their cell phones to do two things, . . . to say
to the person who is dying, ‘I will not let you die alone’,
and ‘I will carry the message forward to your family—
because I know that nobody would believe what happened to you here today.’ ” Reha Kansara, Black Lives
Matter: Can Viral Videos Stop Police Brutality?, BBC
(July 6, 2020), https://www.bbc.com/news/blogs-trending53239123 (quoting Allissa Richardson, author of BEARING WITNESS WHILE BLACK: AFRICAN AMERICANS, SMARTPHONES, AND THE NEW PROTEST #JOURNALISM (Oxford
Univ. Press 2020)).
Protecting the right to record the police advances
both the autonomy of individuals who express themselves by choosing to openly film police officers in the
course of duty, and the autonomy of viewers and listeners who wish to receive and consider those recordings.
See Jane Bambauer, Is Data Speech?, 66 STAN. L. REV.
57, 74 (2014); Martin H. Redish, The Value of Free
Speech, 130 U. PA. L. REV. 591, 593 (1982); Robert Post,
Participatory Democracy and Free Speech, 97 VA. L.
REV. 477, 478 (2011); David A. Strauss, Persuasion,
Autonomy, and Freedom of Expression, 91 COLUM. L.
REV. 334, 371 (1991). The First Amendment protects
against government interference with individuals’ rational, autonomous, and reflective choices as democratic agents. See C. Edwin Baker, Autonomy and Free
Speech, 27 CONST. COMMENT. 251, 251 (2011). Allowing
11
civilians to record police officers performing their public duties in public locations serves these values. To interfere with the right to record police officers, and thus
the eventual receipt of those recordings, is to interfere
with the ability of citizens to exercise their autonomy
to receive and analyze their own chosen body of information.
Just as writing words on a page, applying paint to
canvas, or wearing a black armband are recognizably
protected speech, recording video is fully protected expression, rather than mere conduct. See, e.g., Marceau
& Chen, 116 COLUM. L. REV. at 1013-15; Kreimer, 159
U. PA. L. REV. at 376-77.
B. Public-Cubed Recordings Are Critical
To The Speech-Creation Process.
The act of making a public-cubed recording is a
critical component of the speech-creation process. If
courts limit protections only to the end product (i.e. a
publicly-disseminated video recording), the government could “simply proceed upstream and dam the
source” by targeting other links in the production
chain (the information gathering necessary for that
end product, for example). Buehrle v. City of Key West,
813 F.3d 973, 977 (11th Cir. 2015). Thus, courts have
recognized the necessity to protect other links in the
production and distribution chain to ensure that core
First Amendment rights are meaningfully protected.
Griswold v. Connecticut, 381 U.S. 479, 482-83 (1965)
(noting that the peripheral rights “to distribute . . . to
12
receive . . . to read” as well as “freedom of inquiry [and]
freedom of thought” were all “necessary in making the
express guarantees [of the First Amendment] fully
meaningful” (citations omitted)); see also Luis v. United
States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (“Constitutional rights thus implicitly protect
those closely related acts necessary to their exercise.”).
Unlike an oral speech, in which the acts of creation
and dissemination occur simultaneously, recordings
typically have temporally distinct phases of creation
and dissemination.6 Ashutosh Bhagwat, Producing
Speech, 56 WM. & MARY L. REV. 1029, 1033 (2015).
Take, for example, Ms. Frazier’s recording of Mr. Floyd’s
murder. She disseminated the recording for public
viewing a day after she recorded it. See Joanna Stern,
They Used Smartphone Cameras to Record Police Brutality—and Change History, WALL ST. J. (June 13,
2020, 12:01 AM), https://www.wsj.com/articles/they-usedsmartphone-cameras-to-record-police-brutalityand-changehistory-11592020827. But the distinct phases of recording and posting should not detract from the importance of protecting that recording as speech.
6
Dissemination arguably is not necessary for a recording or
other work to be protected under the First Amendment. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 559
(1985) (explaining that unpublished drafts are protected by the
First Amendment). Speech need not have an external audience to
be protected; a right to record protects freedom of thought, which
requires no audience. Bambauer, 66 STAN. L. REV. at 82-83;
Kreimer, 159 U. PA. L. REV. at 377-380; see also C. Edwin Baker,
Scope of the First Amendment Freedom of Speech, 25 UCLA L.
REV. 964, 993 (1978).
13
To fully protect end-product movies or recordings
such as Ms. Frazier’s video, the upstream acts of recording and gathering information must be protected
as well, even though they are sometimes temporally
distinct from dissemination. Robert Post, Encryption
Source Code and the First Amendment, 15 BERKELEY
TECH. L.J. 713, 717 (2000) (“If the state were to prohibit
the use of [film] projectors without a license, First
Amendment coverage would undoubtedly be triggered.
This is not because projectors constitute speech acts,
but because they are integral to the forms of interaction that comprise the genre of the cinema.”); Kreimer,
159 U. PA. L. REV. at 382; Anderson v. City of Hermosa
Beach, 621 F.3d 1051, 1062 (9th Cir. 2010) (“[T]he process of expression through a medium has never been
thought so distinct from the expression itself that we
could disaggregate Picasso from his brushes and canvas, or that we could value Beethoven without the benefit of strings and woodwinds.”).
Consistent with this reasoning, courts have recognized that “[t]he act of making an audio or audiovisual
recording is necessarily included within the First
Amendment’s guarantee . . . as a corollary of the right
to disseminate the resulting recording.” Alvarez, 679
F.3d at 595. As with other forms of expression, “the
right to publish or broadcast an audio or audiovisual
recording would be insecure, or largely ineffective, if the
antecedent act of making the recording is wholly unprotected.” Id. “[B]anning photography or note-taking
at a public event would raise serious First Amendment
concerns; a law of that sort would obviously affect the
14
right to publish the resulting photograph or disseminate a report derived from the notes. The same is true
of a ban on audio and audiovisual recording.” Id. at
595-96.
Like putting pen to paper, audiovisual recordings
are part and parcel of the speech-creation process.
Marceau & Chen, 116 COLUM. L. REV. at 1018; see also
Bambauer, 66 STAN. L. REV. at 70 (“[T]he collection of
data is a necessary precursor to having and sharing
it.”); Marc Jonathan Blitz, The Right to Map (and Avoid
Being Mapped): Reconceiving First Amendment Protection for Information-Gathering in the Age of Google
Earth, 14 COLUM. SCI. & TECH. L. REV. 115, 154-55
(2013) (“It is hard to see how such peripheral rights
could fail to include the right to have access to the
media and tools that make speech possible.”). The act
of recording is therefore protected under the First
Amendment.
C. Public-Cubed Recordings Are Vital To
Exercising The First AmendmentProtected Newsgathering Right.
Relatedly, recording can be an access right—that
is, a newsgathering right—necessary for the proper
functioning of a democracy. Clay Calvert, The Right to
Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First
Amendment Protection?, 64 UCLA L. REV. DISCOURSE
230, 252 (2016) (“Citizens armed with smartphones
play a vital watchdog role today. . . .”); Clay Calvert,
15
The First Amendment Right to Record Images of Police
in Public Places: The Unreasonable Slipperiness of
Reasonableness & Possible Paths Forward, 3 TEX. A&M
L. REV. 131, 155 (2015) (“In journalistic terms, . . . ‘using an iPhone to snap a photograph of one’s surroundings is, in many respects, simply a modern form of note
taking.’ ” (quoting Marc Jonathan Blitz, The Fourth
Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space, 63 AM. U.
L. REV. 21, 76 (2013))); see also Richmond Newspapers
Inc. v. Virginia, 448 U.S. 555, 585-87 (1980) (Brennan,
J., concurring) (identifying “the correlative freedom of
access to information”).
Specifically, recording police officers performing
their public duties increases the amount of information available in the marketplace of ideas, thereby
“ ‘serv[ing] significant societal interests’ wholly apart
from the speaker’s interest in self-expression[ b]y protecting . . . the public’s interest in receiving information.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n of
Cal., 475 U.S. 1, 8 (1986) (citation omitted); see also
Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting). Like displaying a sign in a
yard, image capture is “an unusually cheap and convenient form of communication,” City of Ladue v. Gilleo, 512 U.S. 43, 57 (1994), and allows for widespread
distribution of information.
“[W]ithout some protection for seeking out the
news, freedom of the press,” and other First Amendment freedoms, “could be eviscerated.” Branzburg v.
Hayes, 408 U.S. 665, 681-82 (1972). The government
16
could merely prohibit the process of creating the body
of information (i.e. the recording process) underlying
the press’s stories. See Barry P. McDonald, The First
Amendment and the Free Flow of Information: Towards
a Realistic Right to Gather Information in the Information Age, 65 OHIO ST. L.J. 249, 256, 273 (2004).
This newsgathering right plays a crucial part in
the First Amendment’s role in ensuring the structural
soundness of democracy. See Richmond Newspapers,
448 U.S. at 587 (Brennan, J., concurring). “Implicit in
this structural role is not only ‘the principle that debate on public issues should be uninhibited, robust,
and wide-open,’ but also the antecedent assumption
that valuable public debate—as well as other civic behavior—must be informed.” Id. (quoting N.Y. Times Co.,
376 U.S. at 270); see also id. at 584 (Stevens, J., concurring) (“[T]he First Amendment protects the public and
the press from abridgment of their rights of access
to information about the operation of their government[.]”).
The First Amendment’s newsgathering right also
forms the core of numerous decisions providing access
to judicial proceedings, which implicate the ability of
ordinary citizens to hold their public officials accountable and monitor the proper functioning of government. See, e.g., id. at 583-84; Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 10 (1986) (finding a public
right of access to pretrial hearings in criminal cases);
Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
505 (1984) (finding a public right of access to jury selection in criminal trials); Globe Newspaper Co. v.
17
Superior Court, 457 U.S. 596, 604 (1982) (striking down
state statute excluding the public during cases involving minors and sex crimes). These newsgathering/
access decisions are based on two principles: first, that
there was a historic “tradition of accessibility” in those
forums and second, that “access to a particular government process is important in terms of that very process.” Richmond Newspapers, 448 U.S. at 589.
Recording a police officer performing public duties
in a public location is well within this newsgathering/access right and meets both elements of the Richmond Newspapers test. Because the recordings occur
in public, there is no question that they occur in a location in which there is a tradition of accessibility. See
Hague v. Comm. for Indus. Org., 307 U.S. 496, 515
(1939) (noting that public fora have historically been
open to the public “time out of mind”). And, as in the
cases concerning access to the justice system, recording a police officer serving his or her public function is
crucial for improving that government function. See
Skinner-Thompson, 108 GEO. L.J. at 134-35; see also
Project Veritas Action Fund v. Rollins, 982 F.3d 813,
833 (1st Cir. 2020) (“[R]ecording can itself serve ‘a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs,’’’
and ‘not only aids in the uncovering of abuses . . . but
also may have a salutary effect on the functioning of
government more generally.’ ” (quoting Glik, 655 F.3d
at 82-83 and Mills v. State of Ala., 384 U.S. 214, 218
(1966))); see also City of Houston v. Hill, 482 U.S. 451,
462-63 (1987) (“The freedom of individuals verbally to
18
oppose or challenge police action without thereby risking arrest is one of the principal characteristics by
which we distinguish a free nation from a police
state.”).7
Audiovisual recordings of police officers performing public duties in public locations foster a better
system of self-governance by allowing citizens to hold
police officers accountable for potential misconduct.
The purpose of the First Amendment is “[t]o give to
every voting member of the body politic the fullest possible participation in the understanding of those problems with which the citizens of a self-governing society
must deal.” Alexander Meiklejohn, FREE SPEECH AND
ITS RELATION TO SELF-GOVERNMENT 88 (1948). Collecting information about police interactions with the
7
Notably, and consistent with the newsgathering/access
right recognized by the courts, some state legislatures have identified the importance of balancing citizens’ right to record police
activity with the general prohibition on interfering with police activity by expressly identifying public-cubed recordings as activity
that does not constitute unlawful interference. See Haw. Rev.
Stat. § 710-1010(2)(c) (2021) (statute prohibiting obstructing government operations creates exemption for “[a] person who is making a video or audio recording . . . of a law enforcement officer
while the officer is in the performance of the officer’s duties in a
public place”); N.Y. Civ. Rights Law § 79-p(2) (2021) (“A person
not under arrest or in the custody of a law enforcement official
has the right to record law enforcement activity and to maintain
custody and control of that recording and of any property or instruments used by that person to record law enforcement activities . . . ”); Utah Code § 76-8-305(2) (2021) (“Recording the actions
of a law enforcement officer with a camera, mobile phone, or other
photographic device, while the officer is performing official duties
in plain view, does not by itself constitute . . . interference with
the officer. . . .”).
19
public fuels important policy discussions about public
safety, including the consideration of information the
public would not otherwise know, and thereby facilitates review of police conduct by laypeople and legal
professionals alike. See Marceau & Chen, 116 COLUM.
L. REV at 1007, 1031; Hill, 482 U.S. at 463 n.12 (1987)
(“The strongest case for allowing challenge [to the police] is simply the imponderable risk of abuse . . . that
lies in the state in which no challenge is allowed.” (citation omitted)).
Indeed, and as noted above, recordings of police
officers performing their public duties have had significant real-world impacts, “sparking outrage and dialogue about police practices throughout the nation.”
Simonson, 104 CALIF. L. REV. at 408. In recent years,
smartphone recordings of police officers have been
widely publicized by the media and have “ma[de] the
world witness police brutality toward African-Americans
that was all too easy to ignore in the past.” See Stern,
They Used Smartphone Cameras to Record Police Brutality—and Change History (chronicling a decade of
cell phone videos capturing police brutality against
people of color). Moreover, the video recording of Mr.
Floyd’s death has been lauded as “play[ing] a major
role in igniting a global protest movement against police violence. . . .” Joe Hernandez, Darnella Frazier,
Teen Who Filmed George Floyd’s Murder, Wins Pulitzer
Prize, NPR (June 11, 2021, 4:05 PM ET), https://www.
npr.org/2021/06/11/1005601724/darnella-frazier-teen-whofilmed-george-floyds-murder-wins-pulitzer-prize-citati.
20
In theory, contemporaneous video recordings can
also serve to deter police misconduct in real time, promote respectful policing and accountability, and improve the functioning of a governmental institution in
the process. Simonson, 104 CALIF. L. REV. at 413-16
(“studies show that police behave differently when
they know they are being recorded”); Kreimer, 159 U.
PA. L. REV. at 347 (“the prospect of private image capture provides a deterrent to official actions that would
evoke liability or condemnation”).8 Whether misconduct is ultimately deterred, however, does not change
the fact that recording the police in public serves the
core purpose of the newsgathering/access right: that is,
holding our government institutions accountable and
structurally improving them. Kreimer, 159 U. PA. L.
REV. at 350; see also Al Baker et al., Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. TIMES at
A1 (June 13, 2015), http://www.nytimes.com/2015/06/14/
nyregion/eric-garner-police-chokehold-staten-island.html
(“Absent the video, many in the Police Department
would have gone on believing [Eric Garner’s] death to
8
But see Richard Pérez-Peña & Timothy Williams, Glare of
Video is Shifting Public’s View of Police, N.Y. TIMES (July 30,
2015), https://www.nytimes.com/2015/07/31/us/through-lens-of-videoa-transformed-view-of-police.html (“Experts say that cameras
probably change for the better how the police and the public treat
each other, but . . . the fact that one viral video after another surfaces, showing officers treating civilians harshly, demonstrates
the limits of that change.”); cf. Reha Kansara, Black Lives Matter:
Can Viral Videos Stop Police Brutality? (“[T]he video [of George
Floyd’s murder] transfixed people because of the callous nature of
the killing coupled with the brazen nature of the police, who knew
they were being filmed and still did it anyway.” (quoting Allissa
Richardson)).
21
have been solely caused by his health problems. . . .”);
Stern, They Used Smartphone Cameras to Record Police Brutality—and Change History (crediting Feidin
Santana’s cell phone recording of former officer Michael Slager shooting Walter Scott five times and killing him as he tried to run as key evidence in a jury
convicting Slager of second degree murder).
Lastly, public cubed recordings can serve as key
evidence in investigating and prosecuting those suspected of unlawful behavior. Recently, federal prosecutors relied on cell phone videos to better understand
the January 6, 2021 riots in the U.S. Capitol and
charge rioters for various crimes. See NBC Washington
(@nbcwashington), TWITTER (Jan. 15, 2021, 4:30 PM),
https://twitter.com/nbcwashington/status/13502237732
70736899 (viral video of D.C. police officer Daniel
Hodges being crushed by door during U.S. Capitol
riot); Craig Timberg, Drew Harwell & Spencer S. Hsu,
Police Let Most Capitol Rioters Walk Away. But Cellphone Data And Videos Could Now Lead To More Arrests., WASH. POST (Jan. 8, 2021, 5:37 PM), https://www.
washingtonpost.com/technology/2021/01/08/trump-mobtech-arrests/. Without these recordings, identifying,
charging, and prosecuting culpable parties would be
far more difficult.
*
*
*
In sum, the First Amendment protects the right to
record law enforcement officers performing public duties in public locations because these recordings are
(a) a form of inherently expressive activity or protected
22
speech, rather than mere conduct; (b) part of the
speech-creation process; and (c) necessary to the exercise of the First Amendment-protected newsgathering
right.
II.
This Case Avoids Privacy Concerns And,
Thus, Is Ideal For Clarifying That There Is
A Right To Record In Public-Cubed Settings.
Although some cases require courts to balance recording rights against privacy concerns, this case does
not present that challenge. Like most First Amendment rights, the right to record is not absolute. See, e.g.,
Neil M. Richards, Intellectual Privacy, 87 TEX. L. REV.
387, 393-407 (2008). As addressed above, recording can
constitute direct speech or serve as a critical tool to enable future speech. At the same time, recording can potentially impinge on others’ privacy, both in public and
private spaces. Depending on the context, that intrusion on privacy can justify restricting another’s right
to free speech. See, e.g., Kaminski, 97 B.U. L. REV.
at 171; Skinner-Thompson, 108 GEO. L.J. at 130-31.
Courts typically weigh these competing First Amendment interests in right to record cases. See Bartnicki v.
Vopper, 532 U.S. 514, 533 (2001) (noting that privacy
and speech “are important interests to be considered
on both sides of the constitutional calculus” (emphasis
in original). Sometimes privacy interests can and do
outweigh speech interests in recording private individuals engaged in private activities in private spaces. See
Marceau & Chen, 116 COLUM. L. REV. at 1044 (“There
23
may also be times when a recording of intimate, private details . . . invades privacy concerns so fundamental as to exceed First Amendment protection.”). This
balancing inquiry is necessarily fact-specific, and thus
resistant to bright-line rules.
But in a case such as this one, the First Amendment interests in public-cubed recordings of police officers will almost always outweigh the minimal privacy
interests of the police, as the circuits considering a
public-cubed scenario have held. See, e.g., Fields, 862
F.3d at 356; Turner, 848 F.3d at 688; Gericke, 753 F.3d
at 8; Alvarez, 679 F.3d at 595; Glik, 655 F.3d at 82-83;
Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439. Accordingly, the Court need not grapple with the various
circumstances that may require the weighing of privacy interests.
III. The Court Should Grant Certiorari To
Safeguard Public-Cubed Recordings In All
Jurisdictions.
It is constitutionally unacceptable for the First
Amendment right to record police officers performing
public duties in public locations to be protected only in
certain jurisdictions across the country. Yet only “[s]ixtyone percent of the U.S. population lives in states where
federal appeals courts have recognized a First Amendment right to record police officers performing their official duties in public.” See FIRST AMENDMENT WATCH,
A CITIZEN’S GUIDE TO RECORDING THE POLICE 2 (N.Y.
Univ. 2020), https://firstamendmentwatch.org/wp-content/
24
uploads/2020/06/Citizens-Guide-to-Recording-the-Police2.pdf.
Under the Tenth Circuit’s decision, this clearly
established right may be violated within the Tenth
Circuit without recourse while it is simultaneously
safeguarded by the First, Third, Fifth, Seventh, Ninth,
and Eleventh Circuits, see Fields, 862 F.3d at 356;
Turner, 848 F.3d at 688; Gericke, 753 F.3d at 8; Alvarez,
679 F.3d at 595; Glik, 655 F.3d at 82-83; Smith, 212
F.3d at 1333; Fordyce, 55 F.3d at 439, and by some district courts in circuits that have yet to address the issue, see Pet. at 27, n.6; see also, e.g., Dyer v. Smith, Civil
Action No. 3:19-cv-921, 2021 U.S. Dist. LEXIS 34090,
at *18 (E.D. Va. Feb. 23, 2021) (“Although neither the
Supreme Court nor the Fourth Circuit has recognized
a right to record government officials performing their
duties, both the general constitutional rule and a consensus of cases clearly establish this right.”); Hulbert
v. Pope, No. SAG-18-00461, 2021 U.S. Dist. LEXIS
77897, at *32-33 (D. Md. Apr. 22, 2021) (“This case presents a similar issue, where every circuit considering
the question has found the First Amendment right to
record police exists. . . . Therefore, the Court agrees
with Plaintiffs that the right to record police officers
. . . was clearly established at the time of the incident.”).
Indeed, just months after the Tenth Circuit issued
its decision, a federal district court in Colorado held
that sheriff ’s deputies were entitled to qualified immunity against citizens’ claims that deputies violated
their First Amendment right to record the public areas
25
of a jail in 2018, relying, in part, on the holding in this
case—that is, that the right to record law enforcement
performing public duties in public was not clearly established by the Tenth Circuit in 2014, and that the
Tenth Circuit “declined to state whether such a right
has been clearly established since that time.” Kerr v.
City of Boulder, Civil Action No. 19-cv-01724-KLM,
2021 U.S. Dist. LEXIS 114207, at *29 (D. Colo. June 18,
2021) (emphasis added). In the absence of a clearly established right, there is no meaningful deterrent
against police officers physically preventing bystanders from recording them, or motivation for local jurisdictions to instruct officers to not interfere with
recordings.
Amici therefore urge the Court to grant certiorari
and ensure that citizens across the United States, not
just in certain circuits and districts, have a clearly established First Amendment right to record in the public-cubed setting. Recognition of such a right protects
individual autonomy, increases the body of knowledge
informing the debate over some of the most controversial aspects of our society, and protects the values upon
which our democracy depends. Recent events surrounding police accountability are central to the functioning of our democracy and to the autonomy of its
citizens. Recording police officers performing public
duties in public is exactly the type of activity that the
First Amendment should, and does, protect.
---------------------------------♦---------------------------------
26
CONCLUSION
Amici respectfully request that this Court grant
Mr. Levi Frasier’s petition for writ of certiorari.
Respectfully submitted,
TINA R. VAN BOCKERN
Counsel of Record
JONATHAN S. BENDER
THOMAS A. MORALES
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
(303) 295-8000
trvanbockern@hollandhart.com
jsbender@hollandhart.com
tamorales@hollandhart.com
MATTHEW R. CUSHING
Instructor, Appellate
Advocacy Practicum
UNIVERSITY OF COLORADO
LAW SCHOOL
2450 Kittredge Loop Road
Boulder, CO 80309
(303) 735-6554
matthew.cushing@colorado.ed
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.