Photojournalists have been on a hot winning streak before the federal courts lately, with two favorable rulings reinforcing the right to record police activity in public spaces. So there was a ripple of discontent when a regional appeals court in St. Louis handed down a constitutional clunker in the case of a citizen activist suing the City of Columbia, Missouri, for interfering with his photography.
But legally, there is less to the case of Matthew Stephen Akins than initially feared, and the ruling does no harm to the unbroken consensus that journalists may freely photograph or videotape law enforcement officers conducting official business.
On July 25, the Eighth Circuit U.S. Court of Appeals summarily upheld, without discussion, an August 2016 ruling from the Western District of Missouri dismissing Akins’ First Amendment claims.
Akins sued the City of Columbia, its police department and individual law enforcement officials in May 2015 for what he alleged was a pattern of retaliatory arrests, harassment and confiscation of property motivated by his police watchdog activism. U.S. District Judge Nanette K. Laughrey threw out his constitutional claims, ruling in part that a citizen “has no constitutional right to videotape any public proceedings he wishes to.”
The appeals court did not discuss the substance of the lower-court ruling, but simply found no legal basis to reverse it.
The Akins ruling does nothing to disturb, or contradict, the unbroken string of federal appeals-court rulings vindicating the constitutional right of anyone — citizens as well as journalists — to capture video, images and audio of law enforcement officers when they conduct official business in places visible to the public.
Most recently, federal appeals courts in Philadelphia (Fields v. City of Philadelphia) and in New Orleans (Turner v. Driver) upheld the right to bring constitutional claims against police agencies that interfere with audio or video recording of their officers. That makes four out of 12 regional appellate courts to affirm that recording police activity is constitutionally protected; none has squarely ruled otherwise.
Although Akins’ lawyers were quoted describing his case as a deviation from this line of precedent (a position that would help their cause in obtaining U.S. Supreme Court review), there are decisive factual differences.
According to the district court ruling, Akins was prevented from filming a member of the public, not a police officer, in the Police Department lobby (specifically, a citizen activist who was at the department to file a complaint). The First Amendment right to record law enforcement activity rests on the enormous power that police exercise and the need to monitor how they use it. There is a less compelling argument for the ability to film the complaint intake process inside of the police headquarters, and a greater concern in that space (unlike on a street corner) for both the police department’s ability to function and the public’s willingness to use the complaint process. (Imagine the potential for intimidation if the union defending police officers insisted on a right to film aggrieved citizens as they file complaints.)
For these reasons, the Eighth Circuit’s perfunctory ruling does not represent a retreat from precedent elsewhere. Rather, it simply reiterates longstanding precedent that there is no generalized First Amendment right to be present where news is happening.
Nevertheless, the Akins ruling is discouraging because, once the courts began recognizing a First Amendment right to record police, it at least opened the door to establishing a broader right of access to record other official proceedings. The Eighth Circuit has pulled that door shut, though in a more sympathetic future case with a working journalist as the plaintiff, perhaps the judges might be persuaded to reopen it. The First Amendment should be understood to protect not just the right to distribute news but the right to gather it, without which the right to publish has diminished value.