The Justice Department is urging a court to affirm individuals’ rights to record police under the First Amendment, filing a statement of interest in support of a journalist suing over his arrest while photographing Maryland officers.
In the statement filed this week in a federal court in Maryland, the Justice Department argues that not only do individuals have a First Amendment right to record officers publicly doing their duties, they also have Fourth and 14th Amendment rights protecting them from having those recordings seized without a warrant or due process. The DOJ urges the court to uphold these rights and to reject a motion to dismiss from Montgomery Co. in Garcia v. Montgomery Co., a case that has implications for an increasing crop of litigation on the subject in the era of ubiquitous smartphones.
“The United States is concerned that discretionary charges, such as disorderly conduct, loitering, disturbing the peace and resisting arrest, are all too easily used to curtail expressive conduct or retaliate against individuals for exercising their First Amendment rights. … Core First Amendment conduct, such as recording a police officer performing duties on a public street, cannot be the sole basis for such charges,” wrote the DOJ Civil Rights Division.