Amicus Curiae Brief — Sarah K. Molina, et al., Petitioners v. Daniel Book, et al.

Supreme Court briefOct 12, 2023

Ask Donna

What actually matters in this document.

Text

No. 23-227

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------SARAH K. MOLINA and CHRISTINA VOGEL,

Petitioners,

DANIEL BOOK, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE FIRST AMENDMENT

SCHOLARS IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

---------------------------------♦--------------------------------TINA R. VAN BOCKERN

MATTHEW R. CUSHING

Instructor, Appellate

Counsel of Record

Advocacy Practicum

STEPHEN G. MASCIOCCHI

JONATHAN BENDER

UNIVERSITY OF COLORADO

LAW SCHOOL

HOLLAND & HART LLP

2450 Kittredge Loop Road

555 17th Street, Suite 3200

Boulder, CO 80309

Denver, CO 80202

(303) 735-6554

(303) 295-8000

matthew.cushing@colorado.edu trvanbockern@hollandhart.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

Table of Authorities .............................................

Interest of Amici Curiae ......................................

Summary of Argument ........................................

Argument .............................................................

The First Amendment Protects The Right

To Record Police Officers Performing Public Duties In Public Locations ...................

A. Public-Cubed Recordings Are A Form

of Expression And Protected As

Speech ..................................................

B. Public-Cubed Recordings Are Critical

To The Speech-Creation Process ......... 11

C. Public-Cubed Recordings Are Vital To

Exercising The First AmendmentProtected Newsgathering Right .......... 15

II.

This Case Avoids Privacy Concerns And,

Thus, Is Ideal To Confirm The Right To

Record In Public-Cubed Settings .............. 22

III.

The Court Should Grant Certiorari To Ensure The Right To Record In All Jurisdictions .............................................................. 23

Conclusion............................................................ 25

TABLE OF AUTHORITIES

Page

CASES

Abrams v. United States,

250 U.S. 616 (1919) .................................................16

ACLU of Ill. v. Alvarez,

679 F.3d 583 (7th Cir. 2012) .................... 6, 14, 23, 24

Anderson v. City of Hermosa Beach,

621 F.3d 1051 (9th Cir. 2010) ..................................13

Barnes v. Glen Theatre,

501 U.S. 560 (1991) ...................................................8

Bartnicki v. Vopper,

532 U.S. 514 (2001) ........................................... 22, 23

Branzburg v. Hayes,

408 U.S. 665 (1972) .................................................16

Buehrle v. City of Key West,

813 F.3d 973 (11th Cir. 2015) ..................................12

City of Houston v. Hill,

482 U.S. 451 (1987) ....................................... 9, 18, 19

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ...................................................16

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ....................... 4, 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, 18, 23, 24

iii

TABLE OF AUTHORITIES—Continued

Page

Globe Newspaper Co. v. Superior Court,

457 U.S. 596 (1982) .................................................17

Griswold v. Connecticut,

381 U.S. 479 (1965) .................................................12

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

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) ...................... 6, 23, 24

Lewis v. City of New Orleans,

415 U.S. 130 (1974)................................................. 9

Luis v. United States,

578 U.S. 5 (2016) .....................................................12

Mills v. Alabama,

384 U.S. 214 (1966) .................................................18

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) .....................................................16

Press-Enterprise Co. v. Superior Court,

464 U.S. 501 (1984) .................................................17

Press-Enterprise Co. v. Superior Court,

478 U.S. 1 (1986) .....................................................17

Project Veritas Action Fund v. Rollins,

982 F.3d 813 (1st Cir. 2020) ....................................18

TABLE OF AUTHORITIES—Continued

Page

Richmond Newspapers Inc. v. Virginia,

448 U.S. 555 (1980) ........................................... 15-17

Rumsfeld v. Forum for Acad. & Inst. Rts., Inc.,

547 U.S. 47 (2006) .....................................................8

Sharpe v. Winterville Police Dep’t,

59 F.4th 674 (4th Cir. 2023) ................................ 6, 24

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

State v. Chauvin,

989 N.W.2d 1 (Minn. Ct. App. 2023) .......................10

Texas v. Johnson,

491 U.S. 397 (1989) ...................................................8

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ...................................................7

Turner v. Driver,

848 F.3d 678 (5th Cir. 2017) .......................... 6, 23, 24

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. I ..................................... 2, 5, 22-24

STATUTES

Colo. Rev. Stat. § 13-21-131 (2021) ...............................3

Haw. Rev. Stat. § 710-1010(2)(c) (2021)......................18

TABLE OF AUTHORITIES—Continued

Page

N.Y. Civ. Rights Law § 79-p(2) (2021) ........................18

Utah Code § 76-8-305(2) (2021) .................................18

RULES

Supreme Court Rule 37.2 .............................................1

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/nyregion/ericgarner-police-chokehold-staten-island.html ..........21

Alexander Meiklejohn, FREE SPEECH AND ITS

RELATION TO SELF-GOVERNMENT (1948)...................19

Ashutosh Bhagwat, Producing Speech, 56 WM.

& MARY L. REV. 1029 (2015) ............................. 12, 13

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, 27

CONST. COMMENT. 251 (2011) ..................................11

C. Edwin Baker, Scope of the First Amendment

Freedom of Speech, 25 UCLA L. REV. 964

(1978) ................................................................. 12, 13

TABLE OF AUTHORITIES—Continued

Page

Carla Clavell Ruiz, Artículo: Police Officer’s

Qualified Immunity v. First Amendment

‘Right To Record’, 56 REV. JURIDICA U. INTER.

P.R. 179 (2022) ...................................................... 8, 9

Carly LaForge, Note: Qualified Knowledge: The

Case For Considering Actual Knowledge In

Qualified Immunity Jurisprudence As It

Relates To The First Amendment Right To

Record, 64 WM. & MARY L. REV. 851 (2023) ....... 9, 19

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/howusing-videos-at-chauvin-trial-and-others-impactscriminal-justice .........................................................4

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)........................................................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) .....................................15

David A. Strauss, Persuasion, Autonomy, and

Freedom of Expression, 91 COLUM. L. REV. 334

(1991) .......................................................................11

vii

TABLE OF AUTHORITIES—Continued

Page

Jake Seiner, Streaming Revolution: Protestors

Make Point with Viral Clips, ASSOCIATED

PRESS (June 15, 2020), https://apnews.com/

article/new-york-ny-state-wire-nyc-wire-rodneyking-social-media-1819708dc4fbfc920e1874b4517

a66c4 ........................................................................10

Jane Bambauer, Is Data Speech?, 66 STAN. L.

REV. 57 (2014) .............................................. 11, 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-smartphonecameras-to-record-police-brutalityand-changehistory-11592020827................................... 13, 20, 21

Jocelyn Simonson, Beyond Body Cameras:

Defending a Robust Right to Record the Police,

104 GEO. L.J. 1559 (2016) ..................................... 6-8

Jocelyn Simonson, Copwatching, 104 CALIF. L.

REV. 391 (2016) .................................................... 9, 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 ...........................20

Justin Marceau & Alan K. Chen, Free Speech

and Democracy in the Video Age, 116 COLUM.

L. REV. 991 (2016) ............................. 6, 11, 14, 19, 23

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-chief-tells-immediate-ban-on-chokeholdsmove-called-historic/ .................................................3

Mackenzie Boyer, Student Note: “I Can’t

Breathe”: How Recording The Police Can Save

A Life And The Justice System, 29 WIDENER L.

REV. 241 (2023) ........................................................20

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 InformationGathering 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) ........................................11

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

TABLE OF AUTHORITIES—Continued

Page

Mobile Fact Sheet, PEW RESEARCH CENTER (Apr.

7, 2021), https://www.pewresearch.org/internet/

fact-sheet/mobile .......................................................4

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-in-incidentcaptured-on-viral-video .............................................4

Reha Kansara, Black Lives Matter: Can Viral

Videos Stop Police Brutality?, BBC (July 6,

2020), https://www.bbc.com/news/blogs-trending53239123 ........................................................... 10, 21

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-video-a-transformedview-of-police.html ..................................................21

Robert Post, Encryption Source Code and the

First Amendment, 15 BERK. TECH. L.J. 713

(2000) .......................................................................13

Robert Post, Participatory Democracy and Free

Speech, 97 VA. L. REV. 477 (2011) ...........................11

TABLE OF AUTHORITIES—Continued

Page

Ryan Autullo, Austin to Pay $10 Million to Two

Men Injured by Bean Bag Munitions in 2020

Protests, AUSTIN-AMERICAN STATESMAN (Feb. 17,

2022, 6:29 PM CT), https://www.statesman.com/

story/news/2022/02/17/austin-settle-2-hurt-policeduring-black-lives-matter-protests-justin-howellanthony-evans-floyd/6820949001/ ............................3

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

Scott Skinner-Thompson, Recording as Heckling,

108 GEO. L.J. 125 (2019) ........................... 7, 8, 18, 22

Seth F. Kreimer, Pervasive Image Capture and

the First Amendment: Memory, Discourse and

the Right to Record, 159 U. PA. L. REV. 335

(2011) .............................................. 7, 8, 11-13, 20, 21

The 2021 Pulitzer Prize Winner in Special

Citations and Awards—Darnella Frazier,

PULITZER PRIZES, https://www.pulitzer.org/winners/

darnella-frazier (last visited October 10, 2023) ......10

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:

Marc J. Blitz is the Alan Joseph Bennett Professor of Law at Oklahoma City University School of Law.

Clay Calvert is Professor of Law Emeritus at the

University of Florida and Nonresident Senior Fellow

at the American Enterprise Institute.

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 a Professor of Law and

Director of the Privacy Initiative at Silicon Flatirons

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.

Pursuant to Supreme Court Rule 37.2, counsel of record for

all parties received timely notice of the intent to file this amicus

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.

The listing of these affiliations does not imply any endorsement of the view expressed herein by amici’s institutions.

Helen Norton is a University Distinguished Professor and Rothgerber Chair in Constitutional Law at

the University of Colorado Law School

Jocelyn Simonson is a Professor of Law and Associated Dean for Research and Scholarship 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: (1) explain the doctrinal and theoretical underpinnings of the clearly established First Amendment right to record public officials

performing public duties in public locations; and (2) impress upon the Court the importance of granting certiorari to confirm that right and establish a uniform rule

protecting that right nationwide.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Petitioners ask this Court to grant certiorari to reverse the Eighth Circuit’s erroneous decision that the

right to record police officers in public was not clearly

established. Amici agree. For the following reasons,

this Court should grant certiorari and confirm that the

First Amendment protects the rights of individuals to

record police officers performing public duties in public

spaces—the so-called “public-cubed” pattern presented

by this case.

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;3 reforming policing

practices;4 eliminating qualified immunity for police

officers sued in their individual capacities in state

courts for violating civil rights;5 and banning the use

of nonlethal rounds in dispersing crowds.6 These

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-called-historic/.

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.

Saja Hindi, Here’s What Colorado’s Police Reform Bill Does,

DENVER POST (June 13, 2020), https://www.denverpost.com/

2020/06/13/colorado-police-accountability-reform-bill/; see also

Colo. Rev. Stat. § 13-21-131.

Ryan Autullo, Austin to Pay $10 Million to Two Men Injured by Bean Bag Munitions in 2020 Protests, AUSTIN-AMERICAN

STATESMAN (Feb. 17, 2022, 6:29 PM CT), https://www.statesman.com/

story/news/2022/02/17/austin-settle-2-hurt-police-during-blacklives-matter-protests-justin-howell-anthony-evans-floyd/6820949001/.

recordings have also served as key evidence in investigating those suspected of unlawful behavior, whether

in cases of law enforcement accused of misconduct7 or

in instances where police officers lawfully perform

their duties and protect their communities.8

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 Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) (“Filming police

on the job was rare then but common now. With advances in technology and the widespread ownership of

smartphones, ‘civilian recording of police officers is

ubiquitous.’ ”).

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/howusing-videos-at-chauvin-trial-and-others-impacts-criminal-justice

(“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/riotercharged-with-assaulting-officer-in-incident-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.”).

It is thus imperative for this Court to confirm that

the right to record in public-cubed settings, which

serves a critical democratic function, is a clearly established right 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 because the publiccubed 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,

may be unprotected depending on the jurisdiction

within which the recording was performed. See part

III. Accordingly, the right to record in public-cubed settings is a clearly established right under the First

Amendment and certiorari is warranted.

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”).9

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, 1013-17 (2016). Some scholarship

That is why the circuit courts that have addressed the issue

(other than the Eighth Circuit in the present case) have agreed

that the First Amendment protects the right to record in the public-cubed setting. See, e.g., Sharpe v. Winterville Police Dep’t, 59

F.4th 674, 681 (4th Cir. 2023); Irizarry v. Yehia, 38 F.4th 1282,

1292 (10th Cir. 2022); Fields, 862 F.3d at 356; 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).

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. 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 nonverbal 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, 65-66

(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

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.”); Carla Clavell Ruiz,

Artículo: Police Officer’s Qualified Immunity v. First

Amendment ‘Right To Record,’ 56 REV. JURIDICA U. INTER. P.R. 179, 207 (2022) (“[T]he act of recording the

police in public by, for example, holding up a cell phone

camera expresses the idea that citizens should be monitoring the police.”).

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 they

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[.]”); see also Carly LaForge, Note: Qualified

Knowledge: The Case For Considering Actual

Knowledge In Qualified Immunity Jurisprudence As It

Relates To The First Amendment Right To Record, 64

WM. & MARY L. REV. 851, 878 (2023) (“Given the ubiquity of recording devices (like cell phones) in the

United States at present and the rising prevalence of

civilian cop-watch groups, it is hardly surprising that

cases of police retaliation against citizen recorders

arise regularly.”).

In the context of Darnella Frazier’s recording of

former police officer Derek Chauvin’s murder of

George Floyd,10 and others’ recordings of the Black

Lives Matter movement,11 social commentators 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

See The 2021 Pulitzer Prize Winner in Special Citations

and Awards—Darnella Frazier, PULITZER PRIZES, https://www.

pulitzer.org/winners/darnella-frazier (last visited October 10,

2023). Floyd’s murder conviction was affirmed in State v.

Chauvin, 989 N.W.2d 1, 38 (Minn. Ct. App. 2023).

See Jake Seiner, Streaming Revolution: Protestors Make

Point with Viral Clips, ASSOCIATED PRESS (June 15, 2020),

https://apnews.com/article/new-york-ny-state-wire-nyc-wirerodney-king-social-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.”).

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. 251-53 (2011). Allowing 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 is fully protected expression, rather than mere conduct. See, e.g., Marceau &

Chen, 116 COLUM. L. REV. at 1013-17; 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 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 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,

578 U.S. 5, 26 (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.12 Ashutosh Bhagwat, Producing

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 8283; Kreimer, 159 U. PA. L. REV. at 377-81; see also C. Edwin

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-used-smartphone-cameras-to-record-police-brutality

and-change-history-11592020827. But the distinct

phases of recording and posting should not detract

from the importance of protecting that recording as

speech.

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 BERK. 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

Baker, Scope of the First Amendment Freedom of Speech, 25

UCLA L. REV. 964, 993 (1978).

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 notetaking at a public event would raise serious First

Amendment concerns; a law of that sort would obviously affect the 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, 15455 (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 Amendment-Protected 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,

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

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. 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 SkinnerThompson, 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. Alabama, 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 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.”).13

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

Recordings of police officers performing public duties in public locations foster a better system of selfgovernance by allowing citizens to hold police officers

accountable for potential misconduct. See LaForge, 64

WM. & MARY L. REV. at 878 (“citizen recording gives

the general public a vehicle with which to hold law enforcement officials accountable for their official actions”). 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 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

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.”).

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); Mackenzie Boyer, Student

Note: “I Can’t Breathe”: How Recording The Police Can

Save A Life And The Justice System, 29 WIDENER L.

REV. 241, 243 (2023) (“The growing awareness [of police brutality] has stemmed from the use of video recordings, connected with the use of social media, which

aids in supporting social change.”). Moreover, the video

recording of Mr. Floyd’s murder 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-who-filmed-george-floyds-murderwins-pulitzer-prize-citati.

Lastly, contemporaneous 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”).14 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 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

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-ofvideo-a-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)).

as he tried to run as key evidence in a jury convicting

Slager of second degree murder).

***

In sum, the First Amendment affords a clearly established 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 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 To Confirm The 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 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.

Here, the First Amendment interests in publiccubed recordings of police officers outweigh the minimal privacy interests of the police, as the circuits considering a public-cubed scenario have held in similar

circumstances. See Irizarry, 38 F.4th at 1292; 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 Ensure The Right To Record In All Jurisdictions.

For the foregoing reasons, the right to record in

public-cubed settings is clearly established under

the First Amendment. Nonetheless, today citizens in

fourteen states and the District of Columbia remain

unprotected and face retaliation from officers for recording them in public-cubed settings merely because

the circuit courts for those jurisdictions have not expressly declared the First Amendment right to be

“clearly established.”

Under the Eighth Circuit’s decision, this clearly

established right may be violated within the Eighth

Circuit without recourse while the First, Third, Fourth,

Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits

agree that the First Amendment protects citizens’

right to record. See Sharpe, 59 F.4th at 681; Irizarry,

38 F.4th at 1292; 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.

Amici therefore urge the Court to grant certiorari

and confirm that citizens across the United States

have a clearly established First Amendment right to

record in the public-cubed setting. Recognition of this

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.

---------------------------------♦---------------------------------

CONCLUSION

Amici respectfully request that this Court grant

the petition for writ of certiorari.

Respectfully submitted,

TINA R. VAN BOCKERN

Counsel of Record

STEPHEN G. MASCIOCCHI

JONATHAN BENDER

HOLLAND & HART LLP

555 17th Street, Suite 3200

Denver, CO 80202

(303) 295-8000

trvanbockern@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.edu

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.