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The Third Circuit Court of Appeals ruled in favor of journalists and ordinary bystanders video recording police. The three-judges appellate panel ruled in the cases of a Temple University student, Richard Fields and Amanda Geraci, who was a member of a police watchdog group in Philadelphia called Up Against the Law.

It was a case that drew a "friend of the court"brief from The Reporters Committee for Freedom of the Press and was joined by 31 other media organizations including the National Press Photographers Association, Radio Television Digital News Association, The Associated Press, Gannett, McClatchy, NPR, The New York Times, The Online News Association and the Society of Professional Journalists. The groups argued that the right to video-record police in a public place is a First Amendment right. And if the police could stop a bystander from recording an officer in a public place, then police could stop journalists too.

The American Civil Liberties Union filed the lawsuits on behalf of Fields and Geraci.TheU.S. District Judge Mark A. Kearney ruledthat in order to be protected by the First Amendmentthe videographer had to announce that he or she wasrecordingas an act of protest or challenge to police. The ACLU said sometimes it is not possible to know whether a recording will be useful until after the recording is over. So the ACLU appealed the lower court ruling.

Government operates best in sunlight, and the police are not an exception, Reggie Shuford, executive director of the ACLU of Pennsylvania,said on the ACLU website.

Mickey Osterreicher, a former photojournalist and now counsel for NPPA explained to Poynter why this decision is so important:

"The opinion in Fields by the Third Circuit adds to the growing number of U.S. Court of Appeals decisions affirming the First Amendment rights of citizens and journalists to photograph and record police performing their official duties in a public place, as being 'clearly established.' This is extremely important for a number of reasons," he said.

"The Third Circuit was the only U.S. Court of Appeals that had held in a 2010 case (Kelly v. Borough of Carlisle), that 'the claimed right was not clearly established.' When police interfere with, harass or arrest people who are doing nothing more than photographing or recording while standing in a place where they have a legal right to be present (such as a public sidewalk or park), citizens and journalists may bring a federal civil rights lawsuit against the officers and the department for violating their constitutional rights. Police, in turn, then may assert the defense of'qualified immunity' against such claims."

Osterreicher explained why it helps to have more than one appellate court to agree that journalists have First Amendment right to record police:

"In order to overcome that 'qualified immunity' defense, plaintiffs must show that they were engaged in a constitutionally protected activity that was 'clearly established' at the time of the incident. The only way for that to be substantiated is for the U.S. Supreme Court, a U.S. Court of Appeals or a federal district court having jurisdiction over the area where the incident took place to have previously articulated that right as being clearly established beforehand so that any reasonable police officer would know that what they were doing was unconstitutional," he said. "The Supreme Court has so far declined to hear such a case but every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh and now the Third,) has held that such a clearly established right exists. By those courts doing so, police in those jurisdictions may not successfully use qualified immunity in their defense."

Osterreicher said at least once a week, and sometimes more often, he hears from a photojournalist or newsroom who police have ordered to stop recording. It's a problem nationwide, he said, even in those jurisdictions where courts have already ruled in favor of constitutional protection for recording.

"When arrests occur, the charges are usually disorderly conduct, disturbing the peace, obstruction of governmental administration, loitering or some other discretionary charge because there are almost no circumstances under which photography or recording itself may be classified as a crime," he said.

In their Amicus brief, the media organizations pointed out that recordings of police have become critical evidence in cases as far back at the Rodney King case in 1991 as well as more recent cases in South Carolina, Louisiana, New York, New Jersey, Minnesota and California.

The brief went on to point out how often bystanders record video that makes news: "With the ubiquity of mobile phones that contain high-tech cameras, video content generated by witnesses and bystanders has become a common component of news programming. A 2014 study of eight international 24-hour news channels found that 'an average of 11 pieces of [user-generated content] were used every day on television by [the] news organizations [studied].' Another study of eight popular news websites uncovered that the sites collectively used 237 items of citizen-created video per day, with The New York Times using on average 20 pieces per day."

I asked Osterreicher what advice he gives to photojournalists when police attempt to stop them from recording:

A police officer may not tell you to stop photographing or recording if you are in a public place where you have a legal right to be present but that does not mean that they will not still do so. That is because the right to photograph and record is a First Amendment protected activity which may only be limited by reasonable time, place and manner restrictions. The most common of those restrictions are location. If a police officer orders you to move it is advisable to comply with the request. How far you move is something that you will have to decide for yourself. If you believe that the order is not a reasonable one, ask to speak to a supervisor or the public information officer if that is possible. It is important to be very aware that most police officers do not like to be questioned or challenged once they have told you to do (or not do) something and a mere hesitation, question or request may result in your detention or arrest. Only you can make that judgment call as to what to do. Whatever you do remain polite and professional and keep recording as it may be the only evidence to support your claim if you are arrested. If possible work in pairs so that of you are unable to record your partner can.

Police may only seize your images and/or recording device (cell phone, camera, etc.) only under certain conditions known as 'exigent circumstances.' If they do so without satisfying the exigent circumstances requirements they may also have violated your civil rights against unreasonable search and seizure protected under the Fourth Amendment and due process rights protected by the Fourteenth Amendment.

Those requirements are:

All three prongs must be met and many departments require that a supervisory officer is called before such a seizure takes place. Many departments also have policies that distinguish between seizures of evidence from journalists and citizens. Even after such a seizure, those images may not be viewed without your voluntary consent or subject to a court order.

Also remember that according to the U.S. Department of Justice guidelines: 'under the First Amendment, there are no circumstances under which the contents of a camera or recording device should be deleted or destroyed.'

More here:
US Court of Appeals sides with First Amendment right to video-record police - Poynter (blog)

Lieutenant Commander Joshua Corney, an active duty naval officer who lives in rural Pennsylvania, returned from combat zones in Iraq and Afghanistan with a promise. As he settled back into life stateside, he wanted to offer a meaningful tribute to his fellow service members especially those who never had the chance to come home.

So, in 2015, he started playing a recording of taps a military bugle call most often heard at sunset and at military funerals on his five-acre property in Glen Rock, a small town of 2,000 people near the Pennsylvania-Maryland border. Every evening before 8:00 p.m., Lt. Commander Corney would offer the musical testament to all who have served.

I play this audio memorial in remembrance of those who paid the ultimate sacrifice as well as those who continue to serve and protect our country and freedoms, said Lt. Commander Corney, who is represented by lawyers from the ACLU of Pennsylvania. It is a way to honor a promise I made to God by taking 57 seconds each day to reflect on sacrifices made 24 hours a day, 365 days a year to obtain and sustain our freedoms."

For nearly two years, his tribute went on with little controversy. The borough allows other music to be amplified on a regular basis, including church hymns and bells and live performances at a local restaurant. At less than a minute long, the recording of taps was one of the boroughs shorter pieces of amplified music. When one neighbor approached Lt. Commander Corney about a year ago to ask if he could turn down the volume, Corney accommodated the request by reorienting the speakers away from the neighbors home. But this spring, the controversy erupted when another neighbor complained to the borough.

This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.

In response, the borough ordered Corney to limit the playing of taps to Sundays and what it termed flag holidays. Each violation of the boroughs order would bring a criminal fine of 300 dollars. But the boroughs enforcement action involves two big constitutional no-nos: the hecklers veto and content-based censorship.

The borough is relying on a nuisance ordinance that prohibits sound that annoys or disturbs others. In a patriotic town like Glen Rock, which is home to many military veterans, its no surprise that Lt. Commander Corney has many supporters. But a single complaint triggered the enforcement action. If a heckler could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.

Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corneys musical expression for censorship from the range of sounds that are part of the boroughs regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.

And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.

The borough has decided that taps alone, among the other musical sounds in the borough, must be silenced. The borough may not make this type of content-based distinction without some compelling reason, which doesnt exist in this situation.

Last week, the ACLU of Pennsylvania sent a letter to the borough council to insist that Glen Rock drop its threat to fine Lt. Commander Corney and honor his First Amendment right to free expression. The dispute is not yet resolved, but on Friday the borough indicated that it would review the ACLUs demand at its regularly scheduled July 19 meeting. In the meantime, Lt. Commander Corney will resume his nightly ritual.

Free-speech cases often arise in unusual settings. Some people may be surprised that a servicemans broadcast of taps a song widely regarded as patriotic and intended to honor the sacrifices of those who place themselves in harms way to fight for our constitutional rights would end up being the focus of a First Amendment censorship battle. This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.

The rest is here:
A Small Town in Pennsylvania Is Treading on This Naval Officer's First Amendment Rights - ACLU (blog)

The right to non-offensive speech took center stage at two recent Newseum and Washington Post events on campus speech. There is growing concern about this reinterpretation of the First Amendment on campuses, according to panelists, including Jeffrey Herbst, President and CEO of the Newseum.

President Donald Trump tweeting important announcements is exemplary of a digital media age where what we can say, should say, and how we say it has prompted a reexamination of the First Amendment. This is especially true on campuses, panelists at the The First Amendment on Campus symposium said.

What we are finding is that students are coming onto campuses already censoring themselves and that universities are reinforcing that Frank LoMonte, Executive Director of the Student Press Law Center, told Bloomberg BNA.

Student attitudes regarding free expression are a form of self-censorship that stunt the intellectual discourse that should be happening on campuses, according to the panelists. The right to non-offensive speech stems from the education system in primary and secondary schools, Catherine Ross, a law professor at George Washington University, said.

Educators are not lawyers and dont really understand and execute the First Amendment, Ross said. Schools are enforcing polite behavior that conflict directly with the First Amendment, according to Ross.

Schools should not be concerned with preventing offensive language, Ross said. They should instead teach kids in K-12 how to handle profound disagreements as they come up.

College is one of the last times that students are forced to deal with people with contrasting ideas, one panelist pointed out. After that, they encircle themselves with people of the same tastes, values, and opinions. Digital media takes it a step further by allowing the blocking of posts, people, and conflicting ideas entirely.

Only 16 percent of college students would agree that Americans do a good job at looking for and listening to differing views, according to a recent Gallup poll sponsored by the Knight Foundation and the Newseum Institute.

Throughout the panel discussions it was reiterated that the First Amendment protects all speech, even hate speech.

Id rather know if someone is hateful because that way there is an opportunity to talk Ross LaJeunesse, Global Head of International Relations at Google, said at a Free to State event hosted by The Washington Post.

Students lack knowledge about the First Amendment when they enter universities, according to Christina Paxson, President of Brown University. They dont understand it, dont appreciate it. Why would they? Theyve never learned it, Paxson said at the Washington Post event.

All speech is protected by the First Amendment, the panelists said. Students, in particular, should be taught how to keep divisive conversations civil and to recognize what can and should be said out loud, panelists at both events said.

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The Right to Non-Offensive Speech: Reinterpreting the First Amendment - Bloomberg BNA

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PALOS HILLS, Ill. -- Palos residents are calling for the resignation of a township trustee after she wrote posts on social media that are being called anti-Muslim.

Trustee Sharon Brannigan says she was just exercising her First Amendment rights to free speech.

In one post she asks, Why are all our schools filling with Middle East students without proper documentation?

In another she says Muslims dont integrate and keep their activities hidden.

And in yet another she applauded the First Lady for not wearing a headscarf while she was overseas.

Brannigan says she was forced to delete her Facebook page because of all the hate mail she was receiving. She says her florist business has also been targeted.

But she says is not ashamed of anything she posted and does not plan to resign her position.

Everything I posted is covered under the 1st Amendment, she says. I think its the 85 pound gorilla in the room. You know theres an issue here and now its coming down to us being taxed even more.

Branngian has been an elected Palos Township trustee since 2013.

But Muslim residents say her views on taxation are just a front for her real feelings and that she doesnt like people who are different.

No elected official should be speaking about her constituency her residency in such language, says Nareman Taha, co-founder and director of Arab American family services and Palos Township resident.

Its clearly racist. Its clearly anti-Arab and Islamophobic, says Hatem Abudayyeh, Executive Director of Arab American Action Network. And shes emboldened because we have a racist, and a homophobe and a sexist in the White House.

Brannigan says she has been posting similar sentiments for the last five years. And while illegal immigration might be a sensitive topic, it needs to be discussed openly.

They are taking services from the taxpayer that is and always has been an issue, Brannigan says.

Brannigan says she will be here to make a statement at a board meeting tonight. Protestors say they will also be there to greet her.

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Suburban trustee defends anti-Muslim Facebook posts, says its her First Amendment right - WGN-TV

A panel of lawyers said the case between Hulk Hogan and Gawker was a debate between First Amendment rights and privacy rights, but TheWraps Editor-in-Chief Sharon Waxman disagreed.

In a society where we have the rich getting richer and the media fragmented and difficult to sustain as it is, this is the kind of thing that could happen all the time, Waxman said in a panel discussion Thursday. It doesnt sound like speech. It sounds like something rich people get to do.

Waxman spoke on TheWraps panel The First Amendment in The Age of Trump following a screening of the new documentary Nobody Speak: Trials of the Free Press.It charts how Gawkers decision to publish Hulk Hogans sex tape led to a trial that has potentially opened the flood gates for billionaires to make news outlets they dont like disappear.

Also Read: Is Freedom of Expression in Danger in Trump Era? First Amendment Experts Weigh In (Video)

Waxman shared an instance when she and TheWrap were sued by a millionaire heiress whose pride was hurt when she didnt like the story that ran about her.

We had to suffer this lawsuit going through the courts for two years, a million dollars was spent, it wouldve put us out of business at that time, and the case died one day when the woman failed to show up in court, and the judge threw it out, Waxman said.

Thankfully TheWrap was covered by insurance, but Waxman pointed to Sheldon Adelson privately purchasing the Las Vegas Review-Journal and John Olivers recent report on Sinclair Media Group as examples of how anyone could use their wealth to influence the media.

See Nobody Speak: Trials of a Free Press's latest POWER MOVE.

Anybody can decide that they dont like something that was written about them, and theyre going to be encouraged by Trump, Waxman said. These are all really concerning.

Waxman added that the right to privacy is still a serious matter, but shes less sure about the specifics of the Hulk Hogan case as depicted in Nobody Speak.

The idea that Hulk Hogan and Terry Bollea have two different penises is something very difficult for me to get my brain around, Waxman said.

Watch the video of Waxmans comments above, and check out the complete video and recap here.

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First Amendment Under Attack? TheWrap's Sharon Waxman Weighs in With Panel of Experts (Video) - TheWrap