Section 1983 Claims and the Right to Record the Police

In two recent posts, linked here and here, we discussed wiretapping arrests for videotaping or recording the police. One of the potential results of such an arrest is a Section 1983 lawsuit based, in part, on a violation of the arrestee’s First Amendment rights. It is in these cases that the “right to record the police” has been most directly confronted by the courts. 

As discussed below, in some cases courts have looked favorably on such claims, while in others cases they have not.

The U.S. Court of Appeals for the Third Circuit dealt with the issue in the recent case Kelly v. Borough of Carlisle. In Kelly, the plaintiff filed a civil lawsuit under 42 U.S.C. Section 1983 claiming that his constitutional rights were violated when he was arrested for filming with his hand-held video camera a police officer during a traffic stop. The plaintiff was a passenger in the truck that was stopped for speeding and violating a bumper height restriction, and he turned on the video camera (which he claimed was visible in his lap) during the course of the traffic stop after, he claimed, the officer began yelling at the driver. Toward the end of the traffic stop, the officer informed the plaintiff and the driver that he was taping their interaction using a car-mounted video camera and a microphone on the officer’s shirt. The officer then observed the plaintiff was recording him. Believing the recording by the plaintiff was a violation of the Pennsylvania wiretapping statute, the officer ordered the plaintiff to turn over the camera, which the plaintiff did. After returning to his patrol car and speaking to an assistant district attorney, the officer called for additional police assistance and arrested the plaintiff for violating the wiretap statute.

The charges against Kelly were later dropped, but he filed a Section 1983 lawsuit alleging First and Fourth Amendment violations by the officer and the city. The district court granted the defendant-officer’s summary judgment motion based on qualified immunity and granted the defendant-city’s summary judgment motion based on the plaintiff’s failure to present facts sufficient to establish municipal liability.

The first issue addressed by the Third Circuit on appeal was whether qualified immunity applied to the officer’s actions. For qualified immunity to apply, and shield the government officer from liability for civil damages, his conduct must not have violated “‘clearly established statutory or constitutional rights of which a reasonable person would have known.’” Therefore, with respect to the alleged First Amendment violation, the question for the Third Circuit in Kelly was whether there is a “clearly established” right to videotape the police.

In reaching its conclusion, the Third Circuit analyzed cases from district courts within the Third Circuit as well as federal courts in other jurisdictions (these decisions are discussed below). It ultimately found there was insufficient case law demonstrating a “clearly established” right to record the police at the time the defendant was arrested.

The court further stated that its decision on the First Amendment question was supported by the fact that none of the cases reviewed involved traffic stops—an activity the U.S. Supreme Court has found to be “inherently dangerous.” Thus, the court determined that the right to videotape police officers during traffic stops was not clearly established, and the police officer was entitled to qualified immunity on the alleged First Amendment violation.

In synthesizing earlier precedents, the Third Circuit in Kelly found a distinction between videotaping with an expressive purpose, which may be protected by the First Amendment, and videotaping without an expressive purpose, which may not be protected.

For example, the Third Circuit in Kelly cited Robinson v. Fetterman, in which the U.S. District Court for the Eastern District of Pennsylvania held that there is a free speech right to film police officers in the performance of their public duties. This case involved a citizen who videotaped state troopers conducting truck inspections on a local road because the citizen was concerned about the safety of the inspections. The citizen filmed the troopers from about 20 to 30 feet away, without interfering in their activities, and with the permission of the landowner from whose property he conducted his videotaping activities. Nevertheless, the troopers arrested him for harassment under a state statute. At trial, the citizen was found guilty of harassment, but the charges were dismissed on appeal, and he later filed a Section 1983 lawsuit against the troopers.

In analyzing the Section 1983 claims made by the plaintiff in Robinson, the district court stated the following:

The activities of the police, like those of other public officials, are subject to public scrutiny. Indeed, “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Although Robinson need not assert any particular reason for videotaping the troopers, he was doing so in order to make a visual record of what he believed was the unsafe manner in which they were performing their duties. He had previously talked to . . . a Representative in the Pennsylvania General Assembly, about his concerns. Robinson’s right to free speech encompasses the right to receive information and ideas. He also has a First Amendment right to express his concern about the safety of the truck inspections to the appropriate government agency or officials, whether his expression takes the form of speech or conduct. Videotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence, as it did in this case. In sum, there can be no doubt that the free speech clause of the Constitution protected Robinson as he videotaped the defendants on October 23, 2002.

Therefore, the district court found the troopers liable for violating Robinson’s First Amendment right to videotape police conduct. The Third Circuit in Kelly recognized this case as suggesting a “broad right to videotape the police.”

The Third Circuit in Kelly also examined the Eleventh Circuit’s decision in Smith v. City of Cumming, which involved a couple who filed a Section 1983 lawsuit alleging that the city police harassed them and prevented them from videotaping police actions. Here, the Eleventh Circuit stated that the plaintiffs enjoyed a “First Amendment right, subject to reasonable time, manner and place restrictions, to photograph and videotape police conduct.” The court continued, citing a long string of federal trial and appellate court cases, “[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.” Although the Eleventh Circuit clearly recognized the First Amendment right to videotape police activities, the court affirmed the lower court’s grant of summary judgment in favor of the defendants because the plaintiffs failed to show the defendants had violated that right. However, as in Robinson, the Third Circuit recognized the Eleventh Circuit in Smith announced a broad right to record the police.

The Third Circuit in Kelly also analyzed the Ninth Circuit’s decision in Fordyce v. City of Seattle, in reaching its conclusion. Fordyce involved a Section 1983 plaintiff, an activist and "amateur journalist," who was arrested for violating a Washington state wiretap statute when he videotaped (using audio and video) a public march without obtaining the consent of the bystanders he recorded. Ultimately, the Ninth Circuit held that qualified immunity applied to the officer’s arrest of the plaintiff because a reasonable officer could have believed the plaintiff/arrestee was recording a private conversation in violation of the statute. But in doing so, the court suggested that there is a First Amendment right to “film matters of public interest.” Police conduct in the course of carrying out their public duties would, presumably, qualify as a matter of public interest.

In spite of these cases that support a First Amendment right to record the police, the Third Circuit in Kelly found persuasive other cases that would limit that right (if any). The U.S. District Court of the District of New Jersey in Pomykacz v. Borough of West Wildwood held that photographing a police officer in connection with a citizen’s political activism was protected by the First Amendment. The Section 1983 plaintiff, suspecting an inappropriate romantic relationship between a police officer and the mayor of West Wildwood that created a potential conflict of interest, nepotism, and preferential treatment, took photographs of the officer and the mayor, and was then arrested for stalking. In evaluating the defendants motion for summary judgment, the district court found sufficient evidence that the plaintiff, a self-proclaimed “citizen-activist,” was a concerned citizen “who at times spoke her mind to Borough officials and other citizens about her concerns regarding the official conduct of the police department and the mayor. Such speech is clearly protected by the First Amendment.” However, the district court declined the invitation to rule that videotaping or photographing the police in the course of their duties is, per se, protected by the First Amendment. In a footnote, the court wrote:

Pomykacz makes the blanket assertion that “the observation and monitoring of public officials is protected by the [F]irst [A]mendment.” The Court does not necessarily agree. An argument can be made that the act of photographing, in the abstract, is not sufficiently expressive or communicative and therefore not within the scope of First Amendment protection—even when the subject of the photography is a public servant. . . . Indeed, the Third Circuit has stated, albeit in dicta, that “videotaping or photographing the police in the performance of their duties on public property may be a protected activity. . . . [P]hotography or videography that has a communicative or expressive purpose enjoys some First Amendment protection.”  However, in this case the record supports the conclusion that Pomykacz’s photography and monitoring was part and parcel of her political activism and that Officer Ferentz and Mayor Fox knew as much. Pomykacz expressed her concerns about construction at the municipal building and the relationship between Officer Ferentz and Mayor Fox. She was arrested because, among other things, she took a picture of Officer Ferentz in the municipal building while Mayor Fox was there. Thus the photography was tightly intertwined with Pomykacz’s speech and it is appropriate to address her speech and conduct together.

The district court in Pomykacz ultimately denied the defendants’ summary judgment motion with respect to the plaintiff’s Section 1983 claim based on the First Amendment violation.

Finally, the Third Circuit in Kelly also considered its own earlier decision in Gilles v. Davis. Gilles involved two plaintiffs—one a campus evangelist and the other a member of his campus ministry who videotaped the other man preaching provocatively to a group of students. After they were arrested for disorderly conduct, they brought a Section 1983 claim against the arresting officers. Their First Amendment claim based on the videotaping activity was dealt with in a footnote. The Third Circuit wrote in dicta:  "[V]ideotaping does not constitute a protected First Amendment activity. But videotaping or photographing the police in the performance of their duties on public property may be a protected activity. More generally, photography or videography that has a communicative or expressive purpose enjoys some First Amendment protection."

In other words, the Third Circuit suggested in Gilles that videotaping the police in the course of carrying out their public duties may be a protected activity—but is not absolutely so. The determinative factor for the Third Circuit was whether the videotaping was done with a communicative or expressive purpose.

In summary, the Third Circuit in Kelly relied on cases such as Robinson, Smith, Fordyce, Pomykacz, and Gilles, as a collective, for the proposition that videotaping the police with an expressive purpose may be protected by the First Amendment, while videotaping the police without an expressive purpose may not be protected. The Third Circuit did not offer any test or standard to determine when a videotape is made with an expressive purpose, so, presumably, the purpose of the filming must be analyzed based on the facts of each particular case.

For the average citizen, demonstrating that videotaping the police was done with an expressive purpose may be a challenge, but, presumably, posting video to a blog or YouTube would meet the threshold. For a journalist, demonstrating an expressive purpose would presumably be easier as taking video is part of the newsgathering and publication process.

Whether or not other circuits concur with the Third Circuit’s analysis in Kelly remains to be seen as case law develops further.

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Now that we have explored wiretapping arrests following incidents when citizens record police activity, and the Section 1983 claims that sometimes follow such arrests, in our next and final post on recording police activity, we will discuss another potential obstacle to exercising the right to record the police—state obstruction statutes.

Jean v. Massachusetts State Police and the Right to Record the Police

In an earlier post, we began analyzing whether there is a recognized “right to record the police.” We looked at judicial decisions in Maryland and in Illinois involving each state’s wiretapping statute. In this post, we examine a decision issued in 2007 by the First Circuit Court of Appeals in Jean v. Massachusetts State Police.

Jean presents a slightly different twist on wiretapping prosecution cases than those we examined earlier. In Jean, a political activist posted a videotape on the Internet of a warrantless search of a private residence by the state police. The videotape, taken by the home owner's “nanny-cam,” was assumed by the court to have been taken illegally, in violation of the Massachusetts state wiretapping statute, Mass. Gen. Laws ch. 272 § 99(B)(4)—both audio and video were recorded without the knowledge or consent of the police, and the state wiretapping statute required the consent of all parties in order to record conversations.

Following publication of the video on Jean's website, the state police wrote to Jean and told her to remove the audio portion of the material because it was in violation of the wiretapping statute or face action by legal authorities. Jean then sought a temporary restraining order and preliminary and permanent injunction against the state police’s threatened prosecution under the wiretap statute, citing her right to free speech under the First Amendment.

The trial court granted the plaintiff’s request for preliminary injunction, citing the U.S. Supreme Court’s decision in Bartnicki v. Vopper, 532 U.S. 514 (2001). Bartnicki involved the application of the federal wiretapping statute, 18 U.S.C. § 2511, to the news media’s reporting on an illegally recorded conversation that was legally obtained by the media. Ultimately, after balancing the interests of the government and the news media at stake, the Supreme Court held in Bartnicki that state officials may not constitutionally punish publication of truthful information that was lawfully obtained, “absent a need . . . of the highest order.”

The First Circuit affirmed the trial court’s application of Bartnicki to the facts of Jean. The state wiretapping statute was deemed content neutral, so, to determine the outcome of the case, the court balanced the interests of the state police in criminalizing the plaintiff’s conduct, and the interests of Jean and the public in the “publication of truthful information of public concern.” The state advanced the interest of the government in protecting the privacy of citizens and encouraging the uninhibited exchange of ideas and information among private parties. The court found this interest “virtually irrelevant” as the intercepted communication at issue involved a search by police officers of a private citizen’s home in front of that individual, his family, and several other officers. The second asserted government interest in punishing a subsequent publisher of intercepted information because interceptors were rarely known and could not generally be prosecuted was likewise discounted as the identity of the interceptor (the home owner) was already known.

On the public interest side, the government did not dispute that the videotape involved a matter of public concern. The only way to distinguish the case from Bartnicki, according to the First Circuit, was if the plaintiff obtained the videotape illegally. The court assumed that she did but still held that Bartnicki compelled the conclusion that the plaintiff’s publication on her website of an illegally recorded conversation and search by the police was protected by the First Amendment.

The outcome in Jean is important in particular for those who post videotapes of police altercations filmed by others. Bartnicki stands for the proposition that, absent the highest government interest, the First Amendment bars the government from criminalizing the publication of truthful information about a matter of public concern that is lawfully obtained. Jean appears to go one step further and holds that the First Amendment bars criminalizing the publication of truthful information about a matter of public concern, absent the highest government interest, even if that information was unlawfully obtained—for example, obtained in violation of the wiretapping statute. Either scenario could potentially apply to a citizen or journalist who videotapes (or posts videotape online) of the police in the course of carrying out their official duties.

Of course, unlike the cases we discussed in our earlier post, Jean also involves political speech and express criticism of the government. Jean was an activist and had posted the “nanny-cam” video of the warrantless police search on her website—a website dedicated to criticism of a former district attorney. This kind of government criticism falls into the category of “core” political speech, where First Amendment protection is generally at its highest.  

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We have now examined several cases involving the conflict between recording police activity and state wiretapping statutes.  In a post to follow, we will examine Section 1983 claims asserting First Amendment violations following wiretapping arrests for recording the police. In a final post, we will also explore whether citizens or journalists may run afoul of state obstruction statutes when they record police activity.

Is There A Right To Record the Police?

According to one recent judicial opinion, Ickes v. Borough of Bedford (W.D. Pa. Dec. 3, 2010), "the issue of police officers arresting citizens for recording them in public has recently been brought to the forefront of the cultural Zeitgeist." From the “don’t taze me, bro” video to lesser known incidents, YouTube and other video content sharing sites are rife with examples of recorded videos of interactions between police and arrestee/detainees. Moreover, the “right” to record or film police officers has received much attention in the news media and the blogosphere.

The First Amendment plainly states, “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Of course, First Amendment freedoms have never been construed by a majority of the U.S. Supreme Court as “absolute.” So, does the First Amendment provide a right to record the activities of the police in the course of performing their official duties?  

The answer is familiar: Sometimes.

We will explore cases involving the right to record the police in a series of blog posts. This post focuses on whether citizens (including journalists) may, in some states, run afoul of state wiretapping statutes when they record police activities. 


When citizens or journalists wish to videotape or otherwise record the activities of the police, one possible obstacle is state wiretapping or surveillance statutes. For example, the Baltimore Sun reported that a Harford County, Maryland, man was indicted for various acts in connection with a police traffic stop, including violation of the state wiretapping statute for taping his own traffic stop and later posting it on YouTube.

A Maryland circuit court judge dismissed the videotaping and Internet posting charges. Even though Maryland’s wiretapping statute, Md. Cts. & Jud. Proc. Code Ann. §§ 10-401, 10-402, requires all parties to a conversation to consent to being recorded, the law also requires the taped material to be a “private conversation” for a violation of the statute to occur. The Harford County judge found no violation of the wiretapping statute because the officer had no reasonable expectation of privacy in the conversation. According to the Sun, the judge wrote that the defendant’s encounter “‘took place on a public highway in full view of the public. Under such circumstances, I cannot, by any stretch conclude that the troopers had any reasonable expectation of privacy in their conversation with the defendant which society would be prepared to recognize as reasonable.’” So, in this case, the citizen was entitled to record his interaction with the police, even without the consent of the police officers involved.


In Illinois, however, the law is different. In an order issued in January 2011, the U.S. District Court for the Northern District of Illinois rejected a request for a declaratory judgment and injunctive relief filed by the ACLU of Illinois (ACLU) related to the ACLU’s proposed plan to audio record the police, without consent of the recorded officers, when the officers are performing their public duties in public places. In American Civil Liberties Union of Illinois v. Alvarez, the ACLU sought a declaration that the Illinois Eavesdropping Act, 720 ILCS 5/14, which requires consent of all parties to the recorded conversation, did not apply to the ACLU’s recording program. Members of the ACLU had been prepared to audio record the police while monitoring a Chicago Police Department program of suspicion-less container searches on Chicago’s lakefront and during a protest, but they did not do so for fear of prosecution under the eavesdropping statute. Presumably, the ACLU’s intent was to monitor the police for possible violations of law.

The case had earlier been dismissed for lack of standing, but the plaintiffs moved, in part, to alter the judgment and file an amended complaint to cure any defects in standing. Finding some standing issues to have been remedied, the Northern District of Illinois held that the ACLU had not alleged a “cognizable First Amendment injury.” The court wrote, “[t]he ACLU cites neither Supreme Court nor Seventh Circuit authority that the First Amendment includes a right to audio record.” The court, therefore, found that amending the complaint would be “futile” and denied the motion to alter the judgment and amend the complaint.

In reaching its decision, the district court rejected the ACLU’s argument based on Federal Election Commission v. Akins that a “failure to receive information may constitute a constitutional injury.” The court reasoned that Akins was inapposite as it dealt with a statute requiring the disclosure of information—according to the court, “[d]enial of access to statutorily required disclosures is not analogous to a purported First Amendment right to non-consensual audio recording of police activities.” Moreover, the court agreed with the government that a “willing speaker” must exist to implicate the First Amendment right to free speech. According to the court, “[p]olice officers and civilians may be willing speakers with one another, but the ACLU does not allege this willingness of the speakers extends to the ACLU, an independent third party audio recording conversations without the consent of the participants.” Therefore, the court found the ACLU had no standing to assert a First Amendment injury.

According to the ACLU's website, the district court's opinion has been appealed to the Seventh Circuit.

The ACLU case illustrates an important point about states that have all-party consent wiretapping statutes—i.e., statues that require the consent of all parties to the conversation prior to recording. Arguably, the case would have turned out differently (and would likely never have been brought) if Illinois had a one-party consent statute. The case also illustrates a distinction between audio recording and video recording. Had the ACLU proposed to purely video record instead of audio record the police, perhaps the case would have turned out differently. The Illinois statute, 720 ILCS 5/14-2(a)(1)(A), at issue apparently prohibits the recording of conversations, not images. (Of course, the material may have been less useful without the audio portion as well as the video.)

North Carolina

In North Carolina, although there are no reported cases on the issue, it appears that it would be difficult under the state wiretapping law to prosecute a citizen who videotapes or records the police in the course of carrying out their duties. N.C. Gen. Stat. § 15A-287 provides, in part, “[e]xcept as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person: (1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” Section 15A-287, and its definitions (as discussed below), have been interpreted to apply to audio recordings but not video recordings. See Kroh v. Kroh, 152 N.C. App. 347, 351-52, 567 S.E.2d 760, 763 (2002). Thus, the act may prohibit audio recordings where at least one party to the communication does not consent. However, even assuming that the citizen records audio in the videotape recording, it seems likely that the citizen would have (or could obtain) the consent of at least one party to the recording—either herself, if the altercation involves her, or the consent of the suspect who is in the altercation with the police.

Moreover, the definition of “oral communication” is such that it limits the application of the wiretapping statute to communications subject to an expectation of privacy. N.C. Gen. Stat. § 15A-286(17) defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .” Arguably, a police officer and arrestee/detainee would have little or no expectation of privacy during a confrontation in a public place during the course of the officer’s public duties and the arrestee/detainee’s alleged violation of law.

For all these reasons, it seems unlikely that the North Carolina wiretapping statute could be successfully used as a basis to convict a citizen or journalist for videotaping or recording the police in the course of carrying out their duties.  However, as the Illinois case demonstrates, the outcome may vary from state to state.

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In a post to follow, we will review a First Circuit opinion, Jean v. Massachusetts State Police, which represents a slightly different twist on the use of wiretapping statutes to prosecute citizens for recording police activities. Later posts will address Section 1983 claims made by those arrested for wiretapping statute violations when they recorded police activity and potential violations of state obstruction statutes when citizens record the police.


North Carolina Federal Court Enjoins Military Regulation Prohibiting Anti-Islamic Car Decals on Base

The U.S. District Court for the Eastern District of North Carolina recently handed a victory to a former marine, now a civilian worker at Camp Lejuene, who had several anti-Islamic decals pasted to the vehicle he drove and parked on base. Senior Judge Malcolm Howard ruled that the U.S. Marine Corps base’s commanding officer and traffic court officer enforced an otherwise viewpoint-neutral regulation in an unconstitutional, viewpoint discriminatory manner when, in response to complaints from others on base, the officers forced the plaintiff to remove the decals from his car and later banned his car from Camp Lejuene and “any other federal installation” until the decals were removed. The decision, Nieto v. Flatau, is available here.

The court ruled on the defendants' pending motion to dismiss and the parties’ cross-motions for summary judgment at one time. After first denying the defendants’ motion to dismiss, the court undertook a forum analysis to determine the standard of scrutiny to apply to the regulation. Applying the standards set forth in Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983), the court held that Camp Lejuene is a “non-public forum”—the base is “public property that has not traditionally been open for public debate or assembly and has not been designated as such.” Because the base is a non-public forum, the government may restrict speech on the base “as long as the restrictions are reasonable and ‘not an effort to suppress expression merely because public officials oppose the speaker’s view.’” This standard is, of course, less exacting than the strict scrutiny standard that requires a speech regulation to serve a compelling government interest and to be narrowly tailored to achieve that interest.

One of the most interesting aspects of the Nieto case is that, even with the more lenient standard applied to speech regulations in a non-public forum and the deference the court recognized the military is granted with regard to speech regulations, the court still found the application of the regulation in this case did not pass constitutional muster. 

The regulation at issue prohibited “the display of ‘extremist, indecent, sexist or racist messages on . . . motor vehicles in any format (bumper stickers, window decals, art or other adornments)’ on the Base.” The court determined that the regulation was viewpoint neutral on its face but was not applied to the plaintiff in a viewpoint neutral manner. The court wrote:

Plaintiff has been prohibited from displaying anti-Islamic messages, such as “Islam = Terrorism.” Yet, testimony by defendants establishes that decals espousing pro-Islamic messages, such as “Islam is Love” or “Islam is Peace” would be permitted upon the Base. As applied, the regulation allows “one message while prohibiting the messages of those who can reasonably be expected to respond.” Such viewpoint discrimination is the most egregious form of content discrimination and is impermissible regardless of the nature of the forum.

Although the regulation was apparently adopted to prevent speech intended to “inflame the passions of those within the base,” the court rejected this justification, finding that decals with the words “Islam is Love” could be just as inflammatory to some people as “Islam = Terrorism” is to others. Moreover, the court applied to the military regulation the well settled principle that the offensiveness of the speaker’s message is not a proper basis for banning expression.


In the end, the court granted the plaintiff’s request for a permanent injunction barring the base officials from enforcing the regulation in a viewpoint discriminatory manner.

Supreme Court to Consider Law Criminalizing Animal Cruelty Videos

As has been widely reported, the U.S. Supreme Court will review a case this session involving a federal statute that criminalizes the sale of depictions of animal cruelty.  Last year, in United States v. Stevens, the Third Circuit declared the statute unconstitutional and vacated the conviction of Robert Stevens, who was prosecuted for selling videos of illegal dog fighting.  ( covered the Third Circuit decision when it was released last year.)

The basic question for the court is whether or not the statute on its face runs afoul of the First Amendment.  As the Third Circuit framed it, the question for the Supreme Court is, more specifically, whether or not depictions of animal cruelty constitute a new category of speech that receives no First Amendment protection.  If it is a new category of unprotected speech, then depictions of animal cruelty will join the likes of obscenity, child pornography, false and misleading advertising, “fighting words,” and similar kinds of speech that may lawfully be criminalized or banned by the government.  However, as the Third Circuit pointed out in its 2008 opinion, the Supreme Court has not recognized a new category of unprotected speech in about 25 years—which may suggest that the Court will be reluctant to do so in this case. 

Of course, at least theoretically, the Supreme Court could decide more narrowly that depictions of animal cruelty may be limited under certain circumstances, or that the speech at issue is commercial in nature and may be regulated consistent with existing commercial speech principles.

A case like Stevens puts First Amendment principles to the test.  On the one hand, as this article discusses, advocates for freedom of expression are concerned that adding another category of speech to the list that the government may lawfully prohibit chips away at the First Amendment and leaves it vulnerable to further attack. On the other hand, other people argue that depictions of animal cruelty are inhumane and, like obscenity, have little or no social value that render them worthy of First Amendment protection.  It’s too soon to tell which side of the debate a majority of the Supreme Court will favor.

Oral arguments in the case are scheduled for October 6, 2009.  We will continue to follow the story and keep you updated.