Amicus Curiae Brief — Scott D. Pitta, Petitioner v. Dina Medeiros, Individually and in Her Official Capacity as Administrator of Special Education for the Bridgewater Raynham Regional School District, et al.

Supreme Court briefMay 3, 2024

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No. 23-1090

In The

Supreme Court of the United States

____________________________

SCOTT D. PITTA,

Petitioner,

DINA MEDEIROS, INDIVIDUALLY AND IN HER OFFICIAL

CAPACITY AS ADMINISTRATOR OF SPECIAL EDUCATION FOR

THE BRIDGEWATER RAYNHAM REGIONAL SCHOOL

DISTRICT, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF THE CENTER FOR AMERICAN LIBERTY AS

AMICUS CURIAE IN SUPPORT OF PETITIONER’S PETITION

FOR WRIT OF CERTIORARI

MARK TRAMMELL

JOSH DIXON

ERIC SELL

CENTER FOR AMERICAN

LIBERTY

1311 South Main St.

Suite 207

Mount Airy, MD 21771

May 3, 2024

GARY M. LAWKOWSKI

Counsel of Record

DHILLON LAW GROUP, INC.

2121 Eisenhower Avenue

Suite 608

Alexandria, VA 22314

glawkowski@dhillonlaw.com

(703) 574-1654

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST .................................... 1

INTRODUCTION ........................................................ 1

SUMMARY OF THE ARGUMENT ............................ 2

I. The Ubiquity of Smart Phones Makes the

Questions Presented Ones of Important National

Concern ..................................................................... 5

II. Smartphone Technology Enables the Free

Discussion of Governmental Affairs ........................ 6

A. The First Amendment is Not Limited to an

Institutional Press ................................................ 6

B. The Basic Purpose of the First Amendment

is to Protect the Free Discussion of Public

Officials and Affairs .............................................. 8

C. Citizen Recording of Public Officials

Facilitates the Discussion of Governmental

Affairs .................................................................... 9

III.

It is Important for the Court to Clarify

Whether Recording a Public Official is Inherently

Expressive .............................................................. 11

A. The First Circuit’s Approach Conflicts with

this Court’s Treatment of Necessary

Preconditions to Political Speech in the

Campaign Finance Arena ................................... 13

B. The First Circuit’s Approach Conflicts with

this Court’s Cases Holding that Government

Cannot Treat Similarly Situated Speakers

Differently Based on the Content of Their

Expression ........................................................... 14

C. The First Circuit’s Ruling Conflicts with the

Department of Justice’s Recognition that

Recording Public Officials is an Expressive

Activity ................................................................ 15

IV.

It is Important for the Court to Identify

Where Individuals Can Film Government

Officials ................................................................... 16

V. This Case is a Good Vehicle for Addressing the

Impact of Changing Technology on the First

Amendment ............................................................ 19

A. The Questions Presented by the Petition Do

Not Require the Court to Assess Claims of

Qualified Immunity ............................................ 20

B. This Case Allows the Court to Address the

Questions Presented Outside of the Law

Enforcement Context .......................................... 21

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

Cases

ACLU of Ill. v. Alvarez,

679 F.3d 583 (7th Cir. 2012) .................................. 13

Ariz. Free Enter. Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011) .................................................. 8

Baxter v. Bracey,

140 S.Ct. 1862 (mem.) (2020)................................. 21

Branzenburg v. Hayes,

408 U.S. 665 (1972) .................................................. 7

Buckley v. Valeo,

424 U.S. 1 (1976) .......................................... 8, 13, 14

Chauvin v. Minnesota,

144 S.Ct. 427 (mem.) (2023)................................... 11

Citizens United v. FEC,

558 U.S. 310 (2010) .................................. 7, 9, 12, 14

City of Austin v. Reagan Nat’l Advert. of Austin, LLC,

596 U.S. 61 (2022) .................................................. 19

Fields v. City of Phila.,

862 F.3d 353 (3d Cir. 2017).......... 8, 9, 10, 15, 16, 20

First Nat’l Bank of Boston v. Bellotti,

435 U.S. 765 (1978) ...................................... 7, 12, 15

Fordyce v. City of Seattle,

55 F.3d 436 (9th Cir. 1995) .................................... 20

Garrison v. Louisiana,

379 U.S. 64 (1964) .................................................... 9

Gericke v. Begin,

753 F.3d 1 (1st Cir. 2014)....................................... 20

Gilk v. Cunniffee,

655 F.3d 78 (1st Cir. 2011)................................. 8, 20

Hoggard v. Rhodes,

141 S.Ct. 2421 (mem.) (2021)................................. 21

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022)............................... 20

McConnell v. FEC,

540 U.S. 93 (2003) .................................................. 12

Mills v. Alabama,

384 U.S. 214 (1966) .................................................. 8

National Archives and Recs. Admin. v. Favish,

541 U.S. 157 (2004) ................................................ 10

Ness v. City of Bloomington,

11 F.4th 914 (8th Cir. 2021)................................... 20

Nixon v. Shrink Mo. Gov’t PAC,

528 U.S. 377 (2000) ................................................ 13

Pennekamp v. Florida,

328 U.S. 331 (1946) .................................................. 7

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ................................................ 19

Riley v. California,

573 U.S. 373 (2014) .................................................. 5

Sharpe v. Winterville Police Dep’t,

59 F.4th 674 (4th Cir. 2023)................................... 20

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ................................................ 12

Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) .................................. 20

United States v. Armstrong,

517 U.S. 456 (1996) ................................................ 10

United States v. Chemical Found., Inc.,

272 U.S. 1 (1926) .................................................... 10

Ziglar v. Abbasi,

137 S.Ct. 1843 (2017) ............................................. 21

Other Authorities

Artifacts—Minox B Camera, Central Intelligence

Agency,

https://www.cia.gov/legacy/museum/artifact/minoxb-camera/ (last visited May 2, 2024) ....................... 5

Mobile Fact Sheet, Pew Research Center (Jan. 31,

2024), https://www.pewresearch.org/internet/factsheet/mobile/ ............................................................. 6

Wash. Post (Aug. 20, 2021),

https://www.washingtonpost.com/politics/2021/04/2

0/how-first-statement-minneapolis-police-madegeorge-floyds-murder-seem-likegeorge-floyds-fault/ ................................................. 10

Rules

Rule 37.1 ...................................................................... 1

STATEMENT OF INTEREST 1

The Center for American Liberty (“CAL”) is a

501(c)(3) nonprofit law firm dedicated to protecting

civil liberties and enforcing constitutional limitations

on government power.1 CAL has represented litigants

in courts across the country and has an interest in

ensuring application of the correct legal standard in

First Amendment cases.

INTRODUCTION

The vast majority of public servants are diligent

stewards of the public’s trust. But, as Federalist 51

warned, “If men were angels, no government would be

necessary. If angels were to govern men, neither

external nor internal [controls] on government would

be necessary.” Federalist No. 51 (Feb 6, 1788),

https://founders.archives.gov/documents/Hamilton/01

-04-02-0199 (last visited May 2, 2024). Citizen

recordings of public officials help provide an “external

control” to keep public officials honest by providing a

credible way for citizens to challenge official

governmental narratives.

Consistent with Rule 37.1, the Center for American Liberty

provided notice to counsel of record for all parties of their

intention to file this brief at least ten days prior to the deadline

to file this brief. No counsel for a party authored this brief in

whole or part; no counsel or party contributed money intended to

fund the preparation or submission of this brief; and no person

other than amicus or its counsel contributed money intended to

fund its preparation or submission.

The First Circuit drastically departs from First

Amendment principles and the general First

Amendment jurisprudence of this Court to

substantially restrict the ability of citizens to gather

and disseminate information about public officials’

conduct. The First Circuit effectively adopts two

holdings in the alternative, limiting First Amendment

protections to only those videos created by individuals

with an intention to distribute the resulting materials

and to only videos of public officials performing their

duties in indisputably public places. These holdings

conflict with the First Circuit’s own prior rulings

concerning citizen recordings, as well as the holdings

of several other circuits.

Given the widespread proliferation of

smartphones, which enable the average citizen to

record public officials at the click of a button, and the

centrality of protecting speech that discusses and

criticizes government activity, resolving these

conflicts presents several important questions of

national concern that merit the Court’s attention.

SUMMARY OF THE ARGUMENT

The questions presented in this case ask when

and under what circumstances can citizens record

public officials performing their official duties? The

ubiquity of smartphone technology has democratized

these questions. When recording equipment was novel

and expensive the circumstances under which citizens

could record public officials was of primary importance

to the institutional press and niche groups of citizens.

That is no longer the case. Now, the overwhelming

majority of Americans regularly carry sophisticated

recording equipment in their pockets. As a result, the

questions presented in this case impact nearly every

American in their interactions with government

officials.

These questions are important because

smartphone technology enables citizens to record

public officials and contribute to the free discussion of

government affairs. The protections of the First

Amendment are not limited to an “institutional press”

or specific media caste. They apply broadly to anyone

who wishes to enter the marketplace of ideas and

discuss the government’s actions.

A central purpose of the First Amendment is to

protect the free discussion of governmental affairs.

Indeed, the ability to obtain, disseminate, and discuss

information about government and public officials is a

necessary precondition for the form of self-government

guaranteed by our Constitution.

Citizen recordings of public officials serve this

purpose. Regardless of whether an individual sets out

to influence the public debate, citizen recordings are a

powerful source of information that allows the public

to raise informed questions about official conduct.

Thus, the ability of citizens to record public officials

performing their official duties strikes at the core of

First Amendment protections.

In light of these significant national interests,

it is important for the Court to clarify whether

recording a public official is an inherently expressive

activity. The Court has long held that conduct that

enables or serves as a necessary precondition to

speech is protected under the First Amendment. This

is particularly true in the campaign finance context,

where the Court has recognized that the spending of

money to support candidates is a necessary

precondition for enabling political speech. In addition,

the Court has looked skeptically at standards that

categorize like conduct differently based on subjective

criteria, such as motivation. Finally, the Department

of Justice has previously recognized that recording

public officials can be an inherently expressive

activity, even without further commentary or editorial

content contemplated. In light of this prior history, it

is important for the Court to clarify whether the First

Circuit’s opinion reflects the correct view of the law or

whether recording public officials is properly

considered an inherently expressive activity.

It is also important for the Court to clarify

where citizens can record public officials. The First

Circuit opinion appears to adopt a bright-line, onesize-fits-all approach that limits citizen recording to

only the most extreme circumstances. This is

inconsistent with how this Court has addressed other

First Amendment inquiries, where the Court has

acknowledged the First Amendment considerations in

play and looked to the specific circumstances and

governmental interests to evaluate proposed

restrictions.

Finally, this case is a good vehicle for

addressing the questions presented. Unlike many

right to record cases, this case does not have a

qualified immunity element. Thus, it is possible to

address the First Amendment issues without needing

to determine whether they were “clearly established.”

In addition, unlike many right-to-record cases, this

case does not involve law enforcement conduct. Thus,

the Court can address the questions presented

without the complicated factual circumstances that

flow from spur-of-the-moment law enforcement

decisions.

ARGUMENT

The Ubiquity of Smart Phones Makes

the Questions Presented Ones of

Important National Concern

How Americans gather and disseminate

information has changed dramatically. There was a

time when only spies or people in specialized fields

had miniature portable cameras. Indeed, the Central

Intelligence Agency notes that the Minox B, developed

in 1936, was a “portable camera that would easily fit

into the palm of the hand and yet take high-qualify,

spontaneous pictures,” was “the world’s most widely

used spy camera,” and was a “marvel of technology” in

its day. Artifacts—Minox B Camera, Central

Intelligence

Agency,

https://www.cia.gov/legacy/museum/artifact/minox-bcamera/ (last visited May 2, 2024).

In 2014, Chief Justice Roberts noted that

modern cell phones “are now such a pervasive and

insistent part of daily life that the proverbial visitor

from Mars might conclude they were an important

feature of human anatomy.” Riley v. California, 573

U.S. 373, 385 (2014). At that time, only 59% of such

phones were smartphones. See Mobile Fact Sheet, Pew

Research

Center

(Jan.

31,

2024),

https://www.pewresearch.org/internet/factsheet/mobile/ (smartphone prevalence from December

21, 2014). Today, the number is over 90%. Id.

(smartphone prevalence from September 5, 2023).

Today, technology that was beyond the wildest dreams

of our nation’s spies less than a century ago is literally

at the fingertips of the average American.

The result is that 90% of Americans are

routinely walking around with technology that makes

it incredibly easy to record their surroundings. Given

this ease and prevalence, it is critical that both

citizens and government officials understand what

they are—and are not—allowed to record.

A decision in this case will provide federal,

state, and local officials, as well as average American

citizens, with a framework to guide their decisions.

While not framed this way, the questions presented in

this case effectively ask this Court to address the

impact of evolving technology on the law. And those

are questions of immense national importance.

II.

Smartphone Technology Enables the

Free Discussion of Governmental

Affairs

A. The First Amendment is Not Limited to

an Institutional Press

The First Amendment, incorporated against the

States through the Fourteenth Amendment, prevents

states from “abridging the freedom of speech, or of the

press.” U.S. Const. amend. I.

The right to gather and disseminate

information about public affairs is not limited to an

institutional press. For First Amendment purposes,

the “press” is not a special caste. “It has generally been

held that the First Amendment does not guarantee the

press a constitutional right of special access to

information not available to the public generally.”

Branzenburg v. Hayes, 408 U.S. 665, 684 (1972); see

also First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 782 (1978) (“[T]he press does not have a monopoly

on either the First Amendment or the ability to

enlighten.”). Rather, the Court has “consistently

rejected the proposition that the institutional press

has any constitutional privilege beyond that of other

speakers.” Citizens United v. FEC, 558 U.S. 310, 352

(2010) (citation omitted); see also Pennekamp v.

Florida, 328 U.S. 331, 364 (1946) (Frankfurter, J.,

concurring) (“The liberty of the press . . . is no greater

than the liberty of every citizen of the Republic.”).

At a time when 90% of Americans have a

recording device in their pocket, anyone can become a

member of the “press” merely by being in the right

place at the right time. As the First Circuit previously

recognized, “changes in technology and society have

made the lines between private citizens and

journalists exceedingly difficult to draw” as “[t]he

proliferation of electronic devices with video-recording

capability means that many of our images of current

events come from bystanders with a ready cell phone

or digital camera rather than a traditional film crew,

and news stories as just as likely to be broken by a

blogger at her computer as a reporter at a major

newspaper.” Gilk v. Cunniffee, 655 F.3d 78, 84 (1st Cir.

2011); see also Fields v. City of Phila., 862 F.3d 353,

360 (3d Cir. 2017) (“[C]itizens’ gathering and

disseminating ‘newsworthy information [occurs] with

an ease that rivals that of the traditional news media”

while “[i]n addition to complementing the role of the

traditional press, private recordings have improved

professional reporting, as video content generated by

witnesses and bystanders has become a common

component of news programming.” (cleaned up).

B. The Basic Purpose of the First

Amendment is to Protect the Free

Discussion of Public Officials and

Affairs

“‘[T]here is practically universal agreement

that a major purpose of’ the First Amendment ‘was to

protect the free discussion of governmental affairs . . .

.’” Ariz. Free Enter. Club’s Freedom Club PAC v.

Bennett, 564 U.S. 721, 755 (2011) (quoting Buckley v.

Valeo, 424 U.S. 1, 14 (1976)). Indeed, “[w]hatever

differences may exist about interpretations of the

First Amendment, there is practically universal

agreement that a major purpose of that Amendment

was to protect the free discussion of governmental

affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).

This includes discussion about government

officials. There is a “paramount public interest in a

free flow of information to the people concerning

public officials, their servants. To this end, anything

which might touch on an official’s fitness for office is

relevant.” Garrison v. Louisiana, 379 U.S. 64, 77

(1964).

This is, at its core, a fundamental precondition

for democratic self-government. See Citizens United,

558 U.S. at 340 (“The right of citizens to inquire, to

hear, to speak, and to use information to reach

consensus is a precondition to enlightened selfgovernment and a necessary means to protect it.”).

After all, how can the people effectively exercise

sovereignty over their government if they do not know

what their government is doing and are not able to

freely discuss the activities of that government,

including those of individual public servants?

C. Citizen Recording of Public Officials

Facilitates

the

Discussion

Governmental Affairs

The credibility provided by audio and video

recordings is crucial to the ability of citizens to discuss

governmental affairs and serve as a check on

governmental authority.

“To 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.” Fields, 862

F.3d at 359. Citizens already face a high bar when

alleging official impropriety, whether in the court of

public opinion or a court of law. For example, there is

often a presumption of regularity that public officials

“have properly discharged their official duties” “in the

absence of clear evidence to the contrary.” United

States v. Chemical Found., Inc., 272 U.S. 1, 14–15

(1926); see also National Archives and Recs. Admin. v.

Favish, 541 U.S. 157, 174 (2004) (noting the “

presumption of legitimacy accorded to the

Government's official conduct.”); United States v.

Armstrong, 517 U.S. 456, 464 (1996) (“‘[I]n the absence

of clear evidence to the contrary, courts presume that

[Government agents] have properly discharged their

official duties.”). Recordings of public officials allow

citizens to meet this high evidentiary bar.

“[R]ecordings have both exposed police

misconduct and exonerated officers from errant

charges.” Fields, 862 F.3d at 355. Several recent highprofile incidents illustrate this process in action.

Perhaps most famously, the initial police report

concerning the death of George Floyd was titled “man

dies after medical incident during police interaction”

and describes the apprehension of Mr. Floyd as

follows: “Two officers arrived and located the suspect,

a male believed to be in his 40s, in his car. He was

ordered to step from his car. After he got out, he

physically resisted officers. Officers were able to get

the suspect into handcuffs and noted he appeared to

be suffering medical distress. Officers called for an

ambulance. He was transported to Hennepin County

Medical Center by ambulance where he died a short

time later.” Philip Bump, How the First Statement

From Minneapolis Police Made George Floyd’s Murder

Seem Like George Floyd’s Fault, Wash. Post (Aug. 20,

2021),

https://www.washingtonpost.com/politics/2021/04/20/

how-first-statement-minneapolis-police-made-georgefloyds-murder-seem-like-george-floyds-fault/. It made

no mention of the nearly ten minutes during which

Mr. Floyd was restrained by Minneapolis police, which

came to light through subsequent citizen cell phone

footage. Id. In the light most charitable to the

government, the cell phone footage added context that

was omitted from the initial police reports, context

that was immensely important and led to widespread

protests and the eventual conviction of a Minneapolis

police officer for murder. See generally Chauvin v.

Minnesota, 144 S.Ct. 427 (mem.) (2023) (denying

petition for certiorari challenging the jury process in

Mr. Chauvin’s state criminal proceedings).

Citizen records, which are enabled by the

proliferation of smartphones, serve the basic First

Amendment purpose of facilitating the free discussion

and criticism of public officials. Given this strong link

between the challenged activity and core First

Amendment interests, there is a significant national

interest and importance in addressing the questions

presented in this case.

III.

It is Important for the Court to Clarify

Whether Recording a Public Official is

Inherently Expressive

Today, average citizens perform a vital,

constitutionally protected role in our Republic by

performing press functions that ensure citizens are

informed and public officials are accountable. But they

can only perform this function if they are able to record

public officials in the first instance.

“[T]he First Amendment goes beyond protection

of the press and the self-expression of individuals to

prohibit government from limiting the stock of

information from which members of the public may

draw.” Bellotti, 435 U.S. at 783. Since “[f]acts . . . are

the beginning point for much of the speech that is most

essential to advance human knowledge and to conduct

human affairs,” the “Court has held that the creation

and dissemination of information are speech within

the meaning of the First Amendment.” Sorrell v. IMS

Health Inc., 564 U.S. 552, 570 (2011). Put differently,

the ability to gather information is a necessary

precondition for and component of “speech.”

A contrary rule poses a mortal danger to the

core protections of the First Amendment. As Justice

Scalia warned, “[t]o a government bent on suppressing

speech, this mode of organization presents

opportunities: Control any cog in the machine, and you

can halt the whole apparatus.” McConnell v. FEC, 540

U.S. 93, 251 (2003) (Scalia, J., concurring in part).

“Silencing certain voices at any of the various points

in the speech process” enables “[g]overnment [to]

repress speech,” because, in our interconnected

society, “‘effective public communication requires the

speaker to make use of the services of others.’” Citizens

United, 558 U.S. at 339 (quoting McConnell, 540 U.S.

at 251 (Scalia, J., concurring in part)).

The First Circuit’s opinion is in tension with

these principles. Specifically, the First Circuit’s

holding that necessary preconditions for speech are

not themselves “speech” conflicts with the notion that

government cannot discriminate between similarly

situated speakers based on their identity or the

content of their message. This also conflicts with the

repeated pronouncements of the Department of

Justice that recording government actors is protected

activity. All of these conflicts raise important

questions that cry out for resolution by the Court.

A. The First Circuit’s Approach Conflicts

with this Court’s Treatment of Necessary

Preconditions to Political Speech in the

Campaign Finance Arena

The First Circuit’s conclusions also conflicts

with this Court’s longstanding approach other areas of

First Amendment law, particularly campaign finance

law. See generally ACLU of Ill. v. Alvarez, 679 F.3d

583, 596 (7th Cir. 2012) (“The Supreme Court’s

campaign-finance cases illustrate how laws of this sort

trigger First Amendment scrutiny.”).

In the campaign finance context, the Court has

long recognized that the dependence of a

communication on prerequisite conduct does not

“operate[] itself to introduce a nonspeech element or to

reduce the exacting scrutiny required by the First

Amendment.” Buckley v. Valeo¸424 U.S. 1, 16 (1976)

(“[T]his Court has never suggested that the

dependence of a communication on the expenditure of

money operates itself to introduce a nonspeech

element or to reduce the exacting scrutiny required by

the First Amendment.”). As Justice Breyer observed,

“a decision to contribute money to a campaign is a

matter of First Amendment concern—not because

money is speech (it is not); but because it enables

speech.” Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,

400 (2000) (Breyer, J., concurring). Because money

enables speech, “a ‘restriction on the amount of money

a person or group can spend on political

communication during a campaign’ . . . ‘necessarily

reduces the quantity of expression by restricting the

number of issues discussed, the depth of their

exploration, and the size of the audience reached.’”

Citizens United, 558 U.S. at 339 (quoting Buckley, 424

U.S. at 19).

Similarly, restricting the ability of citizens to

record public officials based on their subjective intent

ex ante necessarily reduces the quantity of expression

and, with it, the number of issues discussed, the depth

of their exploration, and the size of the audience

reached. A citizen may well begin recording public

officials with no intent to distribute the resulting

footage yet change their mind once they realize that

they have captured something important or newsworthy on film. Those videos will likely not come into

existence under the First Circuit’s test. Because the

First Circuit’s ruling restricts the ability of individuals

to engage in activity that enables speech, thereby

reducing the quantity of expression, it implicates First

Amendment principles and stands in stark tension

with this Court’s campaign finance line of cases.

B. The First Circuit’s Approach Conflicts

with this Court’s Cases Holding that

Government Cannot Treat Similarly

Situated Speakers Differently Based on

the Content of Their Expression

The First Circuit’s ruling also conflicts with the

line of cases holding that government cannot treat

speakers differently based on their expressive

message. Bellotti recognized “[e]ven decisions

seemingly based exclusively on the individual’s right

to express himself acknowledge that the expression

may contribute to society’s edification.” 435 U.S. at

783. The First Circuit implicitly treats like conduct

differently based on the speaker’s subjective intent.

After all, the negative inference of the First Circuit’s

ruling is that the exact same conduct would receive

First Amendment protection if Petitioner had

intended to disseminate the footage ex ante.

This concern is exacerbated by the fact that “the

value of the recordings may not be immediately

obvious, and only after review of them does their

worth become apparent.” Fields, 862 F.3d at 358.

In the First Amendment context, this is not and

cannot be correct. At very least, it is in tension with

the idea that laws restricting speech must be based on

objective criteria rather than the message or

motivation of the speaker.

C. The First Circuit’s Ruling Conflicts with

the Department of Justice’s Recognition

that Recording Public Officials is an

Expressive Activity

The First Circuit held in the alternative that

Petition’s proposed recording fell outside of First

Amendment protections “because such a recording is

not intended to be disseminated to the public.” App.

24. This determination directly contradicts the prior

position of the Department of Justice. To wit, the

Department of Justice has previously opined that the

right to record police officers discharging their duties

in public “does not depend on individuals criticizing

police, commenting on their behavior, or engaging in

any other expressive conduct beyond making the

recording.” Br. for the United States as Amicus Curiae

in Support of Pls.-Appellants and Urging Reversal,

Fields v. City of Phila., Case Nos. 16-1651, 16-1650 (3d

Cir. Oct. 31, 2016).

Given the significant First Amendment

interests at stake in activities that facilitate

commentary on governmental affairs, the Court’s

longstanding protection of activities that enable

speech, and the Department of Justice’s recognition

that recording public officials can be an inherently

expressive act, it is important for the Court to address

the First Circuit’s opinion and the question of whether

recording public officials is an inherently expressive

activity protected by the First Amendment.

IV.

It is Important for the Court to Identify

Where

Individuals

Can

Film

Government Officials

Citizens interact with public officials in a wide

variety of circumstances, from observing police and

public officials on the street to meeting officials at the

counter of the Department of Motor Vehicles to

meeting privately behind closed doors. As noted, the

prevalence of smartphones means that citizens are

rarely without a readily available camera, creating

new opportunities for citizens to film public officials

throughout these myriad interactions. This case

presents an opportunity for the Court to delineate the

ground rules for not only by whom but also when and

where filming is protected by the First Amendment.

The First Circuit effectively adopted a brightline rule: “[A] First Amendment right to record

government officials performing their duties [exists]

only when those duties have been performed in public

spaces.” App. 18. But this rule runs counter to basic

First Amendment principles and effectively discards

traditional First Amendment forum analysis.

As discussed above, citizen recordings allow

citizens to expose government misconduct, dishonesty,

or maladministration, all of which are just as possible

behind purportedly closed doors as in the public

square. Indeed, if anything, concern that public

officials may misrepresent their conduct is higher

away from “indisputably public” places where there

will likely be additional witnesses who can corroborate

other eyewitness accounts.

These are not merely hypothetical concerns. At

its core, this is what the facts of this case are about: a

desire to record public officials engaged in their official

duties to provide a check against misleading official

statements. See Pet. at 3 (“[Petitioner] tried to videorecord an online meeting with public school employees

. . . because those school employees omitted key

information[] from the minutes of previous meetings

with him.” (footnote omitted)).

In light of these background principles, there is

no justification for the bright line rule adopted by the

First Circuit. This Court’s First Amendment analysis

is rarely an all-or-nothing proposition. It often deals in

differing burdens and differing levels of scrutiny based

on the surrounding circumstances. For example, the

Court traditionally applies a forum analysis to

determine what level of scrutiny is applicable to a laws

that impact free speech and free expression on

government property. This provides a framework for

protecting the First Amendment rights of citizens

while also ensuring that the rights of others and the

need to perform key governmental functions are not

impinged.

The First Circuit disregarded this long

tradition of First Amendment jurisprudence in its

primary holding. 2 Instead, it categorically excludes

the recording of public officials outside of

“indisputably public places in full view of the public”

from the ambit of the First Amendment, regardless of

the purported governmental interest. See App. 22.

This Court’s First Amendment jurisprudence

suggests that if there is a First Amendment right to

record public officials in “indisputably public places,”

there is also a First Amendment interest at stake in

recording public officials in other settings. To be sure,

this right is not and need not be deemed absolute. Like

any other form of speech protected by the First

2 The First Circuit does purport to engage in this analysis as an

alternative holding. See App. 25–28. However, as the Petition

notes, the First Circuit’s analysis appears to misapply

intermediate scrutiny by failing to address how a regulation that

allows audio recordings but prohibits video recording is narrowly

tailored to the stated interests. Pet. at 28–29. Thus, the First

Circuit’s alternative holding does not provide an independent and

adequate basis to support the court’s judgment.

Amendment, an individual’s right to record public

officials may well be subject to reasonable contentneutral restrictions. See generally City of Austin v.

Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61

(2022); Reed v. Town of Gilbert, 576 U.S. 155 (2015).

Under

such

framework,

important

governmental interests—such as protecting the

secrecy of the grand jury room or ensuring the

integrity of the judicial process—may well be

sufficient to justify highly restrictive generally

applicable rules, while other interests—such as

restricting video but not audio recordings in a meeting

with school officials—may not. However, those

restrictions can and should be viewed under this

Court’s traditional tests for evaluating restrictions on

First Amendment activity, not categorically excluded

from it.

The First Circuit’s creation of a bright line rule

for when First Amendment rights attach is in stark

tension with this Court’s broader First Amendment

jurisprudence. Addressing this tension is an

important national concern.

This Case is a Good Vehicle for

Addressing the Impact of Changing

Technology on the First Amendment

This case has two features that make it a good

vehicle for addressing the nationally important

questions of when citizens can record public officials.

First, it does not involve a qualified immunity

analysis. And second, it does not involve a “heat of the

moment” decision by law enforcement.

A. The Questions Presented by the

Petition Do Not Require the Court to

Assess Claims of Qualified Immunity

Many of the leading Courts of Appeals cases

addressing a “right to record” arise after the fact in the

context of an individual who is arrested, threatened,

or otherwise retaliated against by government

officials for seeking to record the activities of public

officials. 3 Such cases generally present a mix of “pure”

First Amendment questions, as well as questions of

individual liability that rise or fall based on doctrines

of qualified immunity.

The introduction of questions of qualified

immunity necessarily complicates such cases. It

requires the Court to assess not only whether the

conduct at issue is protected by the First Amendment,

3 See, e.g., Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)

(plaintiff arrested while recording public demonstration); Gilk,

655 F.3d 78 (plaintiff arrested while filming police officers

making an arrest); Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014)

(plaintiff arrested for videotaping a traffic stop); Fields, 862 F.3d

353 (plaintiffs alleged that police retaliated against them for

filming police activity); Turner v. Lieutenant Driver, 848 F.3d 678

(5th Cir. 2017) (plaintiff arrested after videotaping police

activity); Ness v. City of Bloomington, 11 F.4th 914 (8th Cir. 2021)

(plaintiff brought claim alleging that her rights were violated by

police threats to enforce an antiharassment law if she continued

videotaping people in a park as part of dispute with the city

regarding park usage); Irizarry v. Yehia, 38 F.4th 1282 (10th Cir.

2022) (plaintiff brought claim alleging police violated his First

Amendment rights by obstructing his filming of a traffic stop);

Sharpe v. Winterville Police Dep’t, 59 F.4th 674 (4th Cir. 2023)

(plaintiff alleged a clearly established right to livestream a traffic

stop).

but also whether such protection was “clearly

established” beforehand. 4 This later inquiry is often as

or more fraught and complicated than the basic

question of whether this is First Amendment right to

engage in the activity at issue to begin with.

This case avoids the pitfalls associated with a

qualified immunity inquiry, allowing the Court to

address the basic, broadly applicable First

Amendment rights and limitations without having to

wade into complicated questions of whether a right

was clearly established. In short, this case presents a

“clean shot” at crucially important First Amendment

questions without the complicating baggage that often

comes with cases brought after the fact.

B. This Case Allows the Court to Address

the Questions Presented Outside of the

Law Enforcement Context

This case also allows the Court to address

important questions of the filming of public officials

outside of the context of split-second law enforcement

decisions. Unlike many of the cases listed above, this

case does not involve law enforcement personnel or

It may also require an evaluation of whether “qualified

immunity” properly exists in the first instance. See generally

Hoggard v. Rhodes, 141 S.Ct. 2421 (mem.) (2021) (Statement of

Thomas, J., Respecting the Denial of Certiorari); Baxter v.

Bracey, 140 S.Ct. 1862 (mem.) (2020) (Thomas, J., dissenting

from denial of certiorari); Ziglar v. Abbasi, 137 S.Ct. 1843, 1869–

72 (2017) (Thomas, J., concurring in part and concurring in

judgment) (raising concerns about the propriety of the Court’s

qualified immunity jurisprudence).

impromptu law enforcement decisions. This has two

advantages that make it a good vehicle for addressing

the First Amendment issues presented.

First, it allows for a broadly applicable ruling

that does not lend itself to parsing between different

categories of civil servants. This is far from an idle

concern. In reviewing prior case law, the First Circuit

effectively drew a distinction between filming police

officers and filming other government employees,

reasoning that because prior cases arose in the context

of law enforcement actions, their reference to “public

officials” or “government officials” are best understood

as limited references to law enforcement personnel.

See App. 22 (“We thus also reject Pitta’s overbroad

argument that the references to ‘public officials’ or

‘government officials’ in [prior cases], where those

terms were used to refer to police officers, extends to

anyone employed by a government.”).

If this Court were to address the First

Amendment issues raised in this case in the context of

another petition stemming from an interaction with

law enforcement, it would run the risk of needing to

repeat the same exercise again with different classes

of civil servants to prevent lower courts from adopting

a different standard for different “public officials.”

Since this case presents a challenge to the conduct of

public officials who are not law enforcement officers, it

provides an excellent vehicle to address these

questions in a single case.

Second, it avoids drawing the Court into second

guessing the split-second decisions of law enforcement

personnel. It is often said “hard cases make bad law.”

While there are egregious outliers, cases involving law

enforcement officers are often hard. The cases that

rise to the Court’s attention are often the hardest of

all. They frequently involve spur-of-the-moment

decisions in complex and potentially dangerous

circumstances.

This case does not involve these considerations.

Instead, it involves a deliberate decision in a safe and

secure context. The risks associated with making the

wrong choice in a Zoom meeting are not on par with

those faced by law enforcement when affecting a

nighttime traffic stop. While the legal questions at

play may be challenging, the facts are not, making this

case an excellent vehicle for the Court to address the

underlying legal questions without the complicating

factors associated with law enforcement activity.

CONCLUSION

For the foregoing reasons, the Petition for

Certiorari should be granted.

Respectfully submitted,