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

No. 23-227

IN THE

Supreme Court of the United States

SARAH K. MOLINA and CHRISTINA VOGEL,

Petitioners,

v.

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 AMICUS CURIAE THE REPORTERS

COMMITTEE FOR FREEDOM OF THE PRESS

IN SUPPORT OF PETITIONERS

Bruce D. Brown

Counsel of Record

Katie Townsend

Gabe Rottman

Mara Gassmann

Grayson Clary

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW, Suite 1020

Washington, D.C. 20005

bbrown@rcfp.org

(202) 795-9300

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS CURIAE ............................. 1

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

ARGUMENT ................................................................. 4

I.

The right to observe and document policing

is of critical public importance. ........................ 4

a. The right to observe and document

policing is essential to self-rule and

equality under the law................................ 6

b. The right to observe and document

policing depends on an enforceable

remedy for damages. ................................... 9

II. The right to observe and document policing

follows “with obvious clarity” from the

broader right to gather the news in public

places. ............................................................... 11

a. Ordinary standards—including the

right to be free from retaliation—apply

to the right to gather news. ...................... 13

b. Lower courts have failed to apply

ordinary standards to the right to

gather news. .............................................. 16

CONCLUSION............................................................ 20

ii

TABLE OF AUTHORITIES

Cases

Bd. of Airport Comm’rs of L.A. v. Jews for Jesus,

Inc.,

482 U.S. 569 (1987) ................................................. 17

Branzburg v. Hayes,

408 U.S. 665 (1972) ...............................13, 15, 16, 17

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ........................................... 12, 13

Butterworth v. Smith,

494 U.S. 624 (1990) ................................................... 6

CBS, Inc. v. Lieberman,

439 F. Supp. 862 (N.D. Ill. 1976) ......................... 2, 3

Channel 10, Inc. v. Gunnarson,

337 F. Supp. 634 (D. Minn. 1972) ............................ 2

Chestnut v. Wallace,

947 F.3d 1085 (8th Cir. 2020) .................................. 5

Citizens United v. FEC,

558 U.S. 310 (2010) ................................................. 13

City of Houston v. Hill,

482 U.S. 451 (1987) ................................................. 17

Colten v. Kentucky,

407 U.S. 104 (1972) ................................................. 18

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ................................................... 7

iii

Crocker v. Beatty,

995 F.3d 1232 (11th Cir. 2021) .............................. 17

Dayton Newspapers, Inc. v. Starick,

345 F.2d 677 (6th Cir. 1965) .................................... 2

Dorfman v. Meiszner,

430 F.2d 558 (7th Cir. 1970) .................................... 3

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ................................................... 9

Garrison v. Louisiana,

379 U.S. 64 (1964) ..................................................... 7

Gericke v. Begin,

753 F.3d 1 (1st Cir. 2014) ....................................... 17

Glik v. Cunniffe,

655 F.3d 78 (1st Cir. 2011) ........................... 2, 14, 17

Hartman v. Moore,

547 U.S. 250 (2006) ................................................. 14

Index Newspapers LLC v. U.S. Marshals Serv.,

977 F.3d 817 (9th Cir. 2020) .................................... 5

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022)............................. 2, 5

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ........................................... 13, 15

Kelly v. Borough of Carlisle,

622 F.3d 248 (3d Cir. 2010) .................................... 18

iv

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018)............................................. 10

Miami Herald Publ'g Co. v. Tornillo,

418 U.S. 241 (1974) ............................................... 4, 5

Mills v. Alabama,

384 U.S. 214 (1966) ................................................... 6

Minneapolis Star & Trib. Co. v. Minn. Comm’r of

Revenue,

460 U.S. 575 (1983) ................................................. 15

Mocek v. City of Albuquerque,

813 F.3d 912 (10th Cir. 2015) ................................ 17

NAACP v. Button,

371 U.S. 415 (1963) ................................................... 9

Neb. Press Ass’n v. Stuart,

427 U.S. 539 (1976) ............................................... 3, 9

Nieves v. Bartlett,

139 S. Ct. 1715 (2019)....................................... 14, 15

Quraishi v. St. Charles Cnty.,

986 F.3d 831 (8th Cir. 2021) ............................ 12, 16

Reed v. Lieurance,

863 F.3d 1196 (9th Cir. 2017) ................................ 18

Regan v. Time, Inc.,

468 U.S. 641 (1984) ................................................... 8

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1980) ......................................... 2, 7, 19

v

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) ................................................... 9

S.H.A.R.K. v. Metro Parks Serving Summit Cnty.,

499 F.3d 553 (6th Cir. 2007) ............................ 18, 19

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ..................................... 13, 14, 15

Simon & Schuster, Inc. v. Members of N.Y. State

Crime Victims Bd.,

502 U.S. 105 (1991) ................................................. 14

Smith v. Daily Mail Publ’g Co.,

443 U.S. 97 (1979) ......................................... 2, 13, 19

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ................................................. 13

Taylor v. Riojas,

141 S. Ct. 52 (2020) ................................................. 12

Tobey v. Jones,

706 F.3d 379 (4th Cir. 2013) .................................. 14

United States v. CBS, Inc.,

497 F.2d 102 (5th Cir. 1974) .................................... 3

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ................................................. 15

Williamson v. Mills,

65 F.3d 155 (11th Cir. 1995) .................................. 14

Zemel v. Rusk,

381 U.S. 1 (1965) ..................................................... 15

vi

Other Authorities

Alex Horton, In Violent Protest Incidents, a Theme

Emerges: Videos Contradict Police Accounts,

Wash. Post (June 6, 2020),

https://perma.cc/UTU8-5VX7 ................................... 7

Claire Wardle et al., Tow Ctr. for Digital

Journalism, Amateur Footage: A Global Study

of User-Generated Content in TV and Online

News Output (2014) .................................................. 8

Concepcíon de León, D.A. Won’t Prosecute

Reporter Arrested While Covering Shooting of

Deputies, N.Y. Times (Sept. 24, 2020),

https://perma.cc/RG8A-44CG ................................. 10

Iowa Jury Finds Des Moines Register Reporter

Andrea Sahouri Not Guilty on All Charges,

Reporters Comm. for Freedom of the Press

(Mar. 2, 2021),

https://perma.cc/44C3-LCN3............................ 10, 11

John S. Clayton, Note, Policing the Press:

Retaliatory Arrests of Newsgatherers After

Nieves v. Bartlett,

120 Colum. L. Rev. 2275 (2020) ............................... 9

Joseph Ojo & Michelle Solomon, Proposed Bill

Could Make Cell Phone Video of Police Illegal in

Some Cases, Local 10 (July 21, 2021),

https://perma.cc/8G9M-XHKK ............................... 20

vii

Justin Zaremba, Dashcam Proves Woman Lied

About Cop Aiming Gun at Her, NJ.com

(Dec. 2, 2015),

https://perma.cc/3JUT-JH8S.................................... 7

Marty Schladen, More than a Year Later, No

Discipline for Cop Who Pepper-Sprayed

Journalists, Ohio Cap. J. (July 12, 2021),

https://perma.cc/3JG7-ENTM ................................ 11

Paul Pringle & Andrew Blankstein, King Case

Led to Major LAPD Reforms, L.A. Times

(June 17, 2012),

https://perma.cc/EWF9-GPQD ................................. 6

PEN America, Press Freedom Under Fire in

Ferguson (2014)....................................................... 10

Pete Brown, Eyewitness Media Hub, A Global

Study of Eyewitness Media in Online

Newspaper Sites (2015) ............................................ 8

Ram Subramanian & Leily Arzy, State Policing

Reforms Since George Floyd’s Murder, Brennan

Ctr. for Justice (May 21, 2021),

https://perma.cc/3E9V-3SXG ................................... 8

Report of the Independent Commission on the Los

Angeles Police Department (1991) ...................... 6, 7

Sarah Matthews et al., Reporters Comm. for

Freedom of the Press, Press Freedoms in the

United States 2020 (2021),

https://perma.cc/KE9J-LWXH ............................... 10

viii

Special Awards and Citations: Darnella Frazier,

The Pulitzer Prizes (2021),

https://perma.cc/JVH8-FABW ................................. 5

Statement of Interest of the United States,

Garcia v. Montgomery Cnty., No. 8:12-cv-03592

(D. Md. Mar. 4, 2013),

https://perma.cc/V4CC-G8BB ................................ 10

1

INTEREST OF AMICUS CURIAE1

Amicus the Reporters Committee for Freedom

of the Press (“Reporters Committee”) is an

unincorporated nonprofit association founded by

leading journalists and media lawyers in 1970, when

the nation’s news media faced an unprecedented wave

of government subpoenas forcing reporters to name

confidential sources. Today, its attorneys provide pro

bono legal representation, amicus curiae support, and

other legal resources to protect the newsgathering and

publication rights of journalists around the country.

As an organization dedicated to protecting the

First Amendment rights of journalists and news

organizations, amicus has a strong interest in

ensuring that the right to observe and document law

enforcement officers performing their duties in public

is appropriately recognized and protected.

Pursuant to Supreme Court Rule 37, counsel for amicus

curiae states that no party’s counsel authored this brief in whole

or in part; no party or party’s counsel made a monetary

contribution intended to fund the preparation or submission of

this brief; no person other than the amicus curiae, its members

or its counsel made a monetary contribution intended to fund the

preparation or submission of this brief; and counsel of record for

all parties were given timely notice of the intent to file this brief.

1

2

SUMMARY OF THE ARGUMENT

The right to observe and document police

conduct has been “clear” for the better part of a

century. Channel 10, Inc. v. Gunnarson, 337 F. Supp.

634, 638 (D. Minn. 1972). Once a right exercised

principally by the press as “surrogates for the public,”

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

573 (1980), it is now routinely a function undertaken

by bystanders with a smartphone as well. And

whether a given watchdog is press or not, for decades

courts have recognized that individuals “have a right

to be in public places and on public property to gather

information,” so long as the work of watching public

business does not cause “unreasonable interference

with official investigation . . . or the carrying out of

other duties.” Channel 10, 337 F. Supp. at 638; see

also, e.g., Dayton Newspapers, Inc. v. Starick, 345 F.2d

677, 679 (6th Cir. 1965). In other words, “routine

newspaper reporting techniques” are entitled to as

much protection as any other First Amendment

activity, Smith v. Daily Mail Publ’g Co., 443 U.S. 97,

103 (1979), subject—like any other First Amendment

activity—to reasonable “time, place, and manner

restrictions” but not to whim, caprice, or animus, Glik

v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011).

Those basic principles are of central importance

to a free press, and court after court has reaffirmed

them.2 They should have sufficed to resolve this case,

The issue arises most frequently in cases involving video

recording of the police. See Irizarry v. Yehia, 38 F.4th 1282,

1290–92 (10th Cir. 2022) (collecting cases). But for equally

routine exercises of the underlying right to gather information,

see, for instance, CBS, Inc. v. Lieberman, 439 F. Supp. 862, 866

2

3

which deals not with the validity of any generally

applicable restriction on information gathering but

rather with allegations of targeted retaliation. Still,

the Eighth Circuit reached the conclusion that

reasonable officials could think they were entitled to

punish individuals because they chose to observe and

document official conduct in a public forum. See Pet.

App. 65a. The Eighth Circuit’s analysis was

characteristic of a broader dysfunction in the way

lower courts approach the qualified-immunity

analysis when the right to gather information is at

stake. Absent this Court’s intervention, that

dysfunction risks chilling the kind of “reporting on the

criminal justice system” that is “at the core of First

Amendment values.” Neb. Press Ass’n v. Stuart, 427

U.S. 539, 587 (1976) (Brennan, J., concurring).

Amicus offers two arguments in support of

Petitioners. First, the right the Eighth Circuit

declined to recognize is of exceptional importance to

the press and the public, and its exercise depends on

the deterrent effect of a meaningful damages remedy.

Second, the circuits are in clear need of guidance

about the proper approach to the qualified-immunity

analysis when the right to gather information—as

opposed to the right to speak or publish that

information—is at issue. The gravity of the Eighth

Circuit’s error, together with the chilling effect that

disarray continues to have on the exercise of basic

First Amendment rights, warrants review.

(N.D. Ill. 1976) (right to take notes); United States v. CBS, Inc.,

497 F.2d 102, 106–07 (5th Cir. 1974) (right to take sketches);

Dorfman v. Meiszner, 430 F.2d 558, 562–63 (7th Cir. 1970) (right

to take photographs).

4

Amicus also agrees with Petitioners that the

first question presented, whether an individual’s

appearance and presence at an event must

communicate a “particularized message” for the First

Amendment to protect their decision to document the

occasion, Pet. 3, is worthy of review. That rule poses

an obvious hazard to journalists—who attend protests

not to express support or opposition but to cover

events of clear public concern—and the Eighth

Circuit’s outlier approach would lead to the absurd

conclusion that a law enforcement officer who

intentionally retaliates against an individual for

wearing clothing that reads “PRESS” has not

retaliated against First Amendment activity if the

reporter did not verbalize a pro- or anti-protest

perspective.

As this Court recognized in Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974), it

would be “intolerable” to defer resolution of “an

important question of freedom of the press” where, as

here, “an uneasy and unsettled constitutional posture

. . . could only further harm the operation of a free

press,” id. at 247 n.6. Amicus respectfully urges that

the petition for certiorari be granted.

ARGUMENT

I.

The right to observe and document

policing is of critical public importance.

First-hand accounts of police conduct are

essential to the public conversation about police

accountability.

The demonstrations sparked by

George Floyd’s murder offer an especially stark

5

example; as the Ninth Circuit stressed in upholding

reporters’ right to cover such protests without threat

of violence or arrest, “the public became aware of the

circumstances surrounding George Floyd’s death” in

the first instance “because citizens standing on a

sidewalk exercised their First Amendment rights.”

Index Newspapers LLC v. U.S. Marshals Serv., 977

F.3d 817, 831 (9th Cir. 2020). And as the Pulitzer

Prize Board recognized in honoring bystander

Darnella Frazier with a special citation “[f]or

courageously recording” the events of that day,

contemporaneous accounts of police conduct have long

played a “crucial role . . . in journalists’ quest for truth

and justice.” Special Awards and Citations: Darnella

Frazier,

The

Pulitzer

Prizes

(2021),

https://perma.cc/JVH8-FABW.

At the time those events unfolded—and in the

lion’s share of jurisdictions, see Irizarry, 38 F.4th at

1290–92—the actions of individuals like Ms. Frazier

were backstopped by the “clearly established right” to

monitor how police interact with the public, Chestnut

v. Wallace, 947 F.3d 1085, 1090 (8th Cir. 2020). But

under Eighth Circuit law as it stands today, no

remedy would have been available if Officer Derek

Chauvin baselessly threatened Ms. Frazier to prevent

that footage from airing—as it eventually did—on

news programs around the country. That disparity is

“intolerable,” Tornillo, 418 U.S. at 247 n.6, and this

Court should remedy it.

6

a.

The right to observe and document

policing is essential to self-rule and

equality under the law.

“[T]here is practically universal agreement”

that the First Amendment exists “to protect the free

discussion of governmental affairs,” Mills v. Alabama,

384 U.S. 214, 218–19 (1966), and “information

relating to alleged governmental misconduct” in

particular “has traditionally been recognized as lying

at the core” of that purpose, Butterworth v. Smith, 494

U.S. 624, 632 (1990). In just that spirit, first-hand

accounts of police conduct—whether first captured by

members of the media or later broadcast by them—

have long played an indispensable role in the public

conversation about law enforcement accountability.

Before Ms. Frazier, for instance, there was

George Holliday, whose video of the 1991 police

beating of Rodney King sparked public outrage and a

drive to reform the Los Angeles Police Department.

See Paul Pringle & Andrew Blankstein, King Case Led

to Major LAPD Reforms, L.A. Times (June 17, 2012),

https://perma.cc/EWF9-GPQD. After LAPD officials

rejected Mr. Holliday’s attempts to provide them with

his footage, he took his tape to local news station

KTLA. KTLA aired the footage the following night,

setting in motion a sequence of events that resulted in

the video being seen by millions. See Report of the

Independent Commission on the Los Angeles Police

Department 11 (1991).

As an independent

commission later concluded, without Mr. Holliday’s

footage and its distribution by the press, there may

never have been an investigation of the assault

7

because “the report of the involved officers was

falsified.” Id. at ii.

The same dynamic has unfolded again and

again since the advent of handheld recording devices.

Routinely, journalists and other individuals on the

scene of a newsworthy event capture evidence that the

official account was misleading or incomplete. See

Alex Horton, In Violent Protest Incidents, a Theme

Emerges: Videos Contradict Police Accounts, Wash.

Post (June 6, 2020), https://perma.cc/UTU8-5VX7; cf.

Richmond Newspapers, 448 U.S. at 569 (noting that

press coverage of public business discourages

“misconduct” as well as “decisions based on secret bias

or partiality”). And, sometimes, the reverse is true—

documentary evidence also can demonstrate that

allegations of officer misconduct were unfounded. See,

e.g., Justin Zaremba, Dashcam Proves Woman Lied

About Cop Aiming Gun at Her, NJ.com (Dec. 2, 2015),

https://perma.cc/3JUT-JH8S. Whether the evidence

corroborates or refutes an official account, the right to

observe and document what police do in public

advances “the paramount public interest in a free flow

of information to the people concerning public

officials, their servants.” Garrison v. Louisiana, 379

U.S. 64, 77 (1964).

In addition to promoting justice in individual

cases, those first-hand accounts lay before lawmakers

and the public the information necessary to consider

systemic reform. Cf. Cox Broad. Corp. v. Cohn, 420

U.S. 469, 492 (1975) (“Without the information

provided by the press most of us and many of our

representatives would be unable to vote intelligently

or to register opinions on the administration of

8

government generally.”). The wave of legislation

enacted after Mr. Floyd’s murder, for example, may

not have passed if not for Ms. Frazier’s video and the

media coverage that followed. See generally Ram

Subramanian & Leily Arzy, State Policing Reforms

Since George Floyd’s Murder, Brennan Ctr. for Justice

(May 21, 2021), https://perma.cc/3E9V-3SXG.

The right to observe and document policing is

by now so deeply embedded in modern newsgathering

that it is difficult to imagine the news without audiovideo evidence, nor should we want to. As Justice

Brennan observed, “The adage that ‘one picture is

worth a thousand words’ reflects the common-sense

understanding that illustrations are an extremely

important form of expression for which there is no

genuine substitute.” Regan v. Time, Inc., 468 U.S.

641, 678 (1984) (Brennan, J., concurring in part and

dissenting in part). So too with bystander video and

other forms of personal observation or documentation.

Those accounts have the capacity to inform and

elucidate in a way less direct forms of information

may not. Even in 2015, when the events at issue in

the Petition unfolded, such footage played an

indispensable role in news coverage of matters of

obvious public concern. See Claire Wardle et al., Tow

Ctr. for Digital Journalism, Amateur Footage: A

Global Study of User-Generated Content in TV and

Online News Output 21 (2014); see also Pete Brown,

Eyewitness Media Hub, A Global Study of Eyewitness

Media in Online Newspaper Sites 2 (2015). And

without a recognized right to observe and document

law enforcement, many of those stories never could

have run at all.

9

b.

The right to observe and document

policing depends on an enforceable

remedy for damages.

The right to observe and document law

enforcement activity is jeopardized absent an effective

and enforceable remedy to deter police overreach.

First Amendment freedoms, while “supremely

precious,” can also be “delicate and vulnerable.”

NAACP v. Button, 371 U.S. 415, 433 (1963). A

retaliatory detention or use of force has an “immediate

and irreversible” impact on the right to gather the

news, as much so as any classic prior restraint. Neb.

Press Ass’n, 427 U.S. at 559. After all, a journalist or

citizen driven from the scene of a newsworthy event

“is irrevocably prevented from capturing a unique set

of images that might otherwise hold officials

accountable.” John S. Clayton, Note, Policing the

Press: Retaliatory Arrests of Newsgatherers After

Nieves v. Bartlett, 120 Colum. L. Rev. 2275, 2289

(2020). And if “[t]he loss of First Amendment

freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury,”

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63, 67 (2020) (per curiam) (citation omitted), more

troubling still is government action that permanently

“limit[s] the stock of information from which members

of the public may draw,” First Nat’l Bank of Bos. v.

Bellotti, 435 U.S. 765, 783 (1978). To put it bluntly:

If an official’s goal is to muzzle the press, retaliatory

arrests or uses of force work. The right to observe and

document policing depends critically, then, on the

existence of an adequate deterrent to those abuses.

10

That reality is hardly lost on law enforcement.

Too often, officers policing newsworthy events take a

“catch-and-release” approach to deterring press

coverage—arresting journalists for offenses that will

never stand up to scrutiny, but with confidence that

detention will shut down reporting in the meantime.

PEN America, Press Freedom Under Fire in Ferguson

10 (2014). As the Department of Justice has warned,

in those instances where officials would rather not let

the facts of their conduct be reported, the fig-leaf cover

of vague public-order offenses is “all too easily used to

curtail expressive conduct or retaliate against

individuals for exercising their First Amendment

rights.” Statement of Interest of the United States at

1–2, Garcia v. Montgomery Cnty., No. 8:12-cv-03592

(D. Md. Mar. 4, 2013), https://perma.cc/V4CC-G8BB.

And, indeed, this Court has recognized that “some

police officers may exploit the arrest power as a means

of suppressing speech.” Lozman v. City of Riviera

Beach, 138 S. Ct. 1945, 1953 (2018).

The experience of journalists documenting the

protests of George Floyd’s murder reflects as much:

While a staggering number of reporters were detained

in connection with their coverage, vanishingly few of

those arrests resulted in criminal charges. See Sarah

Matthews et al., Reporters Comm. for Freedom of the

Press, Press Freedoms in the United States 2020, at

12 (2021), https://perma.cc/KE9J-LWXH. Fewer still

proceeded to trial, to say nothing of actual conviction.

See, e.g., Concepcíon de León, D.A. Won’t Prosecute

Reporter Arrested While Covering Shooting of

Deputies,

N.Y.

Times

(Sept.

24,

2020),

https://perma.cc/RG8A-44CG; Iowa Jury Finds Des

Moines Register Reporter Andrea Sahouri Not Guilty

11

on All Charges, Reporters Comm. for Freedom of the

Press (Mar. 2, 2021), https://perma.cc/44C3-LCN3.

But acquittal is cold comfort, because each arrest

prevented a journalist from bringing the public the

news that day.

For the right to observe and document police to

be meaningful, then, a sufficient deterrent must be in

place to ensure that right is not infringed in the first

instance. An injunction cannot restore footage that a

reporter never had the chance to take, and other

remedial avenues are often closed as well. For one,

officers who retaliate against press coverage—even

through the use of unwarranted force—virtually

never face prosecution for doing so, and internal

discipline, too, is regrettably rare. See, e.g., Marty

Schladen, More than a Year Later, No Discipline for

Cop Who Pepper-Sprayed Journalists, Ohio Cap. J.

(July 12, 2021), https://perma.cc/3JG7-ENTM.

That leaves one line of defense for the right to

report on policing: suits seeking damages from the

officers who violate it. If immunity bars that path to

accountability, then the right exists in name only.

II.

The right to observe and document

policing follows “with obvious clarity”

from the broader right to gather the news

in public places.

Under the Court’s existing First Amendment

jurisprudence, qualified immunity should have posed

no barrier to suit against the officers for their conduct

here. The complaint alleged the officers engaged in

“intentional police retaliation” due to Petitioners’

12

First Amendment activity. Pet. App. 65a. The Eighth

Circuit divided not on whether using force against

Petitioners was justified, only on whether doing so on

a retaliatory basis violates the First Amendment. The

only question, in other words, was whether an

individual’s decision to observe and record law

enforcement officers in a public place implicates the

Constitution at all. And this Court has spoken clearly

to that issue: “Whether government” is seeking to

regulate the “creating, distributing, or consuming” of

speech “makes no difference” to the constitutional

analysis. Brown v. Ent. Merchs. Ass’n, 564 U.S. 786,

792 n.1 (2011). Put another way, whether law

enforcement may retaliate against an individual who

attends a march to speak, and whether law

enforcement may punish an individual who watches

and documents that march for the evening news are

identical constitutional questions. See Quraishi v. St.

Charles Cnty., 986 F.3d 831, 839 (8th Cir. 2021). If

one right is clearly established for purposes of

qualified immunity, so too, with “obvious clarity,” is

the other. Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020)

(per curiam) (citation omitted). In amicus’s view, the

error below on that point is clear enough that

summary reversal would be appropriate.

Still, because the Eighth Circuit’s error is

characteristic of a broader dysfunction in the lower

courts’ approach to the immunity analysis, this

Court’s plenary review is warranted. That the right

to observe and document law enforcement activity in

public has marched so slowly through the circuit

courts, despite the lack of any serious disagreement

about its existence, reflects a deeper reluctance to

extend full First Amendment protection to the right to

13

gather information. That hesitance finds no basis in

precedent; “[f]acts, after all, are the beginning point

for much of the speech that is most essential to

advance human knowledge,” Sorrell v. IMS Health

Inc., 564 U.S. 552, 570 (2011), and this Court has

already rejected the “suggest[ion] that news gathering

does not qualify for First Amendment protection,”

Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Still,

where the posture is qualified immunity, courts have

drawn absurdly fine distinctions between equally

“routine” approaches to gathering the news, Daily

Mail, 443 U.S. at 103—distinctions that would never

be countenanced in a suit over speech—and rendered

the right practically unenforceable in some

jurisdictions. To avoid seeing the freedom of the press

“eviscerated” on that basis, Branzburg, 408 U.S. at

681, this Court should intervene to provide clarity.

a.

Ordinary standards—including the

right to be free from retaliation—

apply to the right to gather news.

As this Court has repeatedly explained, when

an activity comes within the sweep of the First

Amendment, certain protections necessarily follow

because “the basic principles of freedom of speech and

the press, like the First Amendment’s command, do

not vary.” Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495, 503 (1952); accord Se. Promotions, Ltd. v.

Conrad, 420 U.S. 546, 558 (1975); Ent. Merchs. Ass’n,

564 U.S. at 790. That insight applies with equal force

to efforts to distinguish different media, see Ent.

Merchs. Ass’n, 564 U.S. at 790, and to distinctions

between “stages of the speech process,” Citizens

United v. FEC, 558 U.S. 310, 336 (2010). Just as no

14

reasonable official could think prior restraints

permissible in theater but not film, see Se.

Promotions, 420 U.S. at 558, no one could think

viewpoint discrimination permissible if the state opts

to regulate writing rather than publishing, see Simon

& Schuster, Inc. v. Members of N.Y. State Crime

Victims Bd., 502 U.S. 105, 116–18 (1991).3

The rule against retaliation is one of those

universal invariants. As this Court has explained,

“the law is settled that as a general matter the First

Amendment prohibits government officials from

subjecting an individual to retaliatory actions” for

engaging in protected activity. Hartman v. Moore,

547 U.S. 250, 256 (2006); see also Nieves v. Bartlett,

139 S. Ct. 1715, 1722 (2019). For purposes of qualified

immunity, then, the right against retaliation is “not

an abstract principle but an irrefutable precept.”

Tobey v. Jones, 706 F.3d 379, 391–92 n.6 (4th Cir.

2013). It does not change faces from context to context

any more than the Fourth Amendment right against

baseless arrests turns on which “facially innocent

act,” from photography to dog-walking, an individual

was engaged in when detained without suspicion.

Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)

(denying qualified immunity on a Fourth Amendment

claim where arrest was based on nothing more than

“[t]aking photographs at a public event”).

Similarly, because the “right to gather news is, as the

Court has often noted, not one that inures solely to the benefit of

the news media,” the professional identity of the party asserting

a First Amendment right is irrelevant to the question whether

the right in fact exists. Glik, 655 F.3d at 83.

3

15

As a result, a law enforcement officer could

think it constitutional to retaliate against an exercise

of the right to observe and document policing only if

film as a medium or newsgathering as a stage of the

communicative process were entirely “unprotected by

the First Amendment—or subject to a totally different

standard from that applied to” other First

Amendment activities. Se. Promotions, 420 U.S. at

557. But, of course, both are subject to ordinary First

Amendment standards, and those questions have

been firmly settled for decades. See Burstyn, 343 U.S.

at 503; Branzburg, 408 U.S. at 681; id. at 707. Subject

to the usual disputes regarding whether a retaliatory

motive in fact caused a particular action, then, see

Nieves, 139 S. Ct. at 1722–24, there was no serious

question in 2015 that retaliation against information

gathering, whatever the medium, offends the First

Amendment.

To be sure, those basic principles—without

more—will not resolve every tension between the

rights of journalists and the powers of government.

To say the right to observe and record is subject to

reasonable time, place, and manner restrictions, see

generally Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989), does not settle which content-neutral

restrictions are reasonable. To say that the right is

subject to laws of “general applicability,” Branzburg,

408 U.S. at 682; see also Zemel v. Rusk, 381 U.S. 1, 16

(1965), does not settle which laws are generally

applicable, see Minneapolis Star & Trib. Co. v. Minn.

Comm’r of Revenue, 460 U.S. 575, 581 (1983). But

none of those potential complexities is at issue here.

If adequately alleged and proven, see Nieves, 139 S.

Ct. at 1722–24, retaliation against protected activity

16

like newsgathering is impermissible. There is no

other step in the legal analysis, and no reasonable

official could have thought otherwise.

b.

Lower courts have failed to apply

ordinary standards to the right to

gather news.

Despite the clarity of those principles, lower

courts have struggled to apply them when an official

claims qualified immunity. In that posture, there is a

clear divide between those circuits in which the right

to gather information is treated as an ordinary right—

with all the First Amendment protections that

entails—and those in which newsgathering claims

prompt unwarranted confusion.

The divide is visible even within the Eighth

Circuit’s own precedent.

Characteristic of the

appropriate analysis is Quraishi, a recent decision

from the Eighth Circuit that the panel below failed to

confront. There, a deputy of the St. Charles County

police department argued that he was entitled to

immunity for allegedly “deploying a tear-gas canister

at law-abiding reporters” because no previous case

addressed retaliation against reporters in particular.

Quraishi, 986 F.3d at 839. The panel candidly

acknowledged that the circuit did not have on-point

precedent “where reporters are arrested while

peacefully filming a protest.” Id. at 838. But that was

irrelevant, the court noted, because the “right to

exercise First Amendment freedoms without facing

retaliation from government officials is clearly

established,” id. (citation omitted), and “[r]eporting is

a First Amendment activity,” id. (citing Branzburg,

17

408 U.S. at 681). Axiomatically, then, police can no

more punish reporters for reporting than they could

Edward Hopper for painting or Aaron Copland for

composing. The “brevity of the First Amendment

discussion” required to settle the question makes clear

the answer should be “virtually self-evident” to any

reasonable official. Glik, 655 F.3d at 85.

But the panel below introduced needless

complications to the analysis, as the Petition

describes, and other courts have likewise gone astray.

For instance, it is difficult to imagine a court

concluding that the right to criticize firefighters is

different in scope than the right to criticize the police,

see City of Houston v. Hill, 482 U.S. 451, 461 (1987),

but apparently a reasonable officer might think the

right to record admits of such distinctions, see Crocker

v. Beatty, 995 F.3d 1232, 1243 n.8 (11th Cir. 2021).

Similarly, the law is clearly established that

“nondisruptive speech . . . is still protected speech

even in a nonpublic forum” like an airport, Bd. of

Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482

U.S. 569, 576 (1987), but courts have expressed

confusion whether airport officials may retaliate

against nondisruptive recording, see Mocek v. City of

Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015)

(maybe).

Or consider the circuits’ divided treatment of

traffic stops. As the First Circuit has observed, a

person who films a traffic stop is exercising the same

right as someone who films a pat-down in a park, even

if the change of scenery bears on which restrictions on

the right may be reasonable. See Gericke v. Begin, 753

F.3d 1, 7–8 (1st Cir. 2014). As a result, the distinction

18

is irrelevant to the qualified-immunity analysis where

the underlying claim is retaliation as opposed to, say,

a dispute over the tailoring of a move-on order. Cf.

Colten v. Kentucky, 407 U.S. 104, 108–09 (1972)

(upholding an order to disperse where defendant had

“no bona fide intent to exercise a constitutional right”

and interference with traffic stop presented the “risk

of accident” (citation omitted)). The Third Circuit, by

comparison, approached the same question as if the

“right to record matters of public concern” and the

“right to videotape police officers during a traffic stop”

were entirely different things, apparently holding

open the possibility that the latter might not implicate

the First Amendment at all. Kelly v. Borough of

Carlisle, 622 F.3d 248, 261–62 (3d Cir. 2010).

These distinctions make no sense from a firstprinciples perspective, but these are only a small

sample of the ways in which the divide has defeated

efforts to enforce the newsgathering right. For

instance, in addition to conflating the existence (or

not) of the right with the validity (or not) of particular

restrictions on its exercise, courts have confused the

right to gather information with the right to obtain

access to places where information might be found.

See Kelly, 622 F.3d at 262 (granting qualified

immunity in part because “cases addressing the right

of access to information . . . do not provide a clear rule

regarding First Amendment rights to obtain

information by videotaping”). The result is a muddle.

Compare, e.g., Reed v. Lieurance, 863 F.3d 1196, 1211

(9th Cir. 2017) (approaching observation of buffalo

herding as an information-gathering claim and

applying ordinary tailoring), with S.H.A.R.K. v. Metro

Parks Serving Summit Cnty., 499 F.3d 553, 560 (6th

19

Cir. 2007) (approaching observation of deer cull as an

access claim and suggesting this Court has provided

no “clearly defined framework” for it). And it should

be no surprise, of course, that courts looking to the

wrong line of precedent do not find a clear rule of

decision.

The predictable effect is to undercut the right

to gather information. Of course, the right of access is

itself a vital one, as this Court has repeatedly

reaffirmed. See generally Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555 (1980) (plurality opinion).

But the right to gather the news beyond the walls of

government places and proceedings is a distinct and

indispensable one, because “[a] free press cannot be

made to rely solely upon the sufferance of government

to supply it with information.” Daily Mail, 443 U.S.

at 104. Approaching the immunity analysis as if a

reasonable official would conflate the two needlessly

exaggerates the difficulty of the task confronting

officers. All the Constitution requires is that they

approach the right to gather information under the

shelter of ordinary First Amendment standards—

including the right against retaliation for exercising

that right.

Taken together, these confusions have exacted

a heavy toll on members of the press and public

exercising the right to record. It should be scandalous

that a court could conclude that law enforcement

might be entitled to retaliate against a member of the

press or public solely because the person observed and

recorded what police officers did in public. But the

lingering uncertainty that characterizes the right to

observe and document policing will continue to have a

20

chilling effect on its exercise, while emboldening those

who would suppress it further. See, e.g., Joseph Ojo &

Michelle Solomon, Proposed Bill Could Make Cell

Phone Video of Police Illegal in Some Cases, Local 10

(July 21, 2021), https://perma.cc/8G9M-XHKK. Too

many journalists and bystanders, like Petitioners,

have already been punished for the exercise of their

fundamental rights to gather news and information.

This Court should intervene to ensure those abuses go

no further.

CONCLUSION

For these reasons, amicus curiae respectfully

urges the Court to grant Petitioners’ writ of certiorari

and summarily reverse the Eighth Circuit.

Respectfully submitted,

Bruce D. Brown

Counsel of Record

Katie Townsend

Gabe Rottman

Mara Gassmann

Grayson Clary

REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS

1156 15th St. NW, Suite 1020

Washington, D.C. 20005

bbrown@rcfp.org

(202) 795-9300

October 12, 2023