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.

* * *

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.

Fourth Circuit Affirms Section 230 Immunity on Motion to Dismiss

With 2009 drawing to a close, a panel of the Fourth Circuit affirmed a decision by the Eastern District of Virginia holding that the website was an “interactive computer service” entitled to immunity under Section 230 of the Communications Decency Act with respect to 20 website postings concerning a class-action lawsuit against an auto dealer. The Fourth Circuit’s opinion in Nemet Chevrolet, Ltd. v., Inc. is linked here.

The Fourth Circuit panel’s majority opinion is largely procedural, but it offers an important lesson about how the court views Section 230 immunity. A plaintiff in the Fourth Circuit seeking to avoid a website defendant’s Section 230 immunity by characterizing the defendant as an “information content provider” at the motion to dismiss stage of litigation must provide more than conclusory statements and speculation to state a claim. 

Nemet did not dispute in its amended complaint that was an “interactive computer service” generally entitled to immunity under Section 230. Instead, Nemet alleged that the defendant was an “information content provider” subject to liability under Section 230 with respect to 20 complaints posted on the website.  The Fourth Circuit panel disagreed. The nut of the majority opinion is encapsulated in this quote:

[The Federal Rules of Civil Procedure] require[] “more than conclusions” to “unlock the doors of discovery for a plaintiff.” Viewed in the correct “factual context,” Nemet’s stark allegations are nothing more than a “formulaic recitation” of one of the elements of its claims. A plaintiff must offer more than “[t]hreadbare recitals of the elements of a cause of action” and “conclusory statements,” however, to show its entitlement to relief.

Section 230 defines an “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” Based on the governing precedent, the Fourth Circuit panel reviewed the Nemet case to determine “whether the facts pled by Nemet, as to the application of CDA immunity, make its claim that is an information content provider [subject to liability under Section 230] merely possible or whether Nemet has nudged the claim ‘across the line from conceivable to plausible.’”

In support of its claim for defamation and tortious interference with business expectancy, Nemet argued that was an “information content provider,” because of (1) the structure and design of the website or (2)’s participation in preparing the 20 complained of consumer complaints. Nemet argued that the defendant’s actions to solicit the consumer complaints, steer the complaints into specific categories, contact customers to obtain more information about their complaints, help draft or revise their complaints, and promise recovery by joining a class-action lawsuit rendered responsible, in whole or in part, for the creation or development of the posts. In other words, these actions moved into the “information content provider” category.


At first blush, it would seem that Nemet had a plausible argument. But, reviewing Nemet’s amended complaint, the majority found the plaintiff did not allege sufficient facts to demonstrate the defendant’s status as an “information content provider.” The majority wrote, “[e]ven accepting as true all of the facts Nemet has pled as to’s liability for the structure and design of its website, the amended complaint ‘does not show, or even intimate,’ that contributed to the allegedly fraudulent nature of the comments at issue.”


The majority distinguished this case from the FHC v. case, in which the Ninth Circuit held liable as the developer of unlawful website content because required users to disclose their sex, family status, and sexual orientation, as well as those of the users’ desired roommates, using a list of pre-determined responses. According to the Fourth Circuit, “the Ninth Circuit did not hold that a website operator becomes an information content provider because the information posted on its website may be developed in a way unrelated to its initial posting, such as its potential to further a class-action lawsuit. merely adopted a definition of 'development,' for purposes of § 230(f)(3), that includes 'materially contributing' to a given piece of information’s alleged unlawfulness.”


The Fourth Circuit also rejected Nemet’s argument that became an “information content provider” by asking questions about consumer complaints against Nemet or by helping consumers draft or revise their complaints. With respect to drafting or revising complaints, the majority noted that the Fourth Circuit’s standards required Nemet to allege action “more than a website operator performs as part of its traditional editorial function” to render it an “information content provider.”


Finally, the panel majority rejected Nemet’s claim that fabricated eight of the 20 website posts. If the defendant made up these complaints, then, presumably, the court would have to find the creator of—and, therefore, “information content provider” of—the fabricated content. Nemet’s primary evidence of the fabrication was the fact that its own internal dealership records did not match the dates, car models, and first names associated with these eight complaints. The majority found this allegation to be “pure speculation and a conclusory allegation of an element of the [Section 230] immunity claim. . . .” (Chief District Judge Jones dissented from the majority on this issue, writing that the majority held Nemet to too high a pleading standard for these eight complaints.)


Thus, Nemet stands for the proposition that to make it past the initial pleadings stage, a plaintiff must allege facts and offer more than mere conclusory statements and speculative inferences about how a defendant qualifies as the developer or creator of website content. 

New Limits on Section 230 Immunity

In a seemingly simple little case that has turned out to have all kinds of interesting and important twists, the United States Court of Appeals for the Ninth Circuit last month held that Section 230 of the Communications Decency Act did not preclude a plaintiff from stating a valid claim for promissory estoppel against an Internet service provider.

The case, Barnes v. Yahoo!, Inc., arose in 2004 when Cecilia Barnes broke up with her long-term boyfriend, who responded by creating in Barnes’s name several Yahoo profiles that contained nude pictures of Barnes and various open solicitations for sex.  When Barnes was flooded with calls, personal visits, and emails, she followed Yahoo’s policy for getting a fraudulent profile removed by mailing in a request.  Two months later, the profiles remained, so Barnes contacted a local news program who began to report the story.  The day before the story was to run, a Yahoo representative contacted Barnes, asked her to fax in another removal request, and said she would “personally walk the statement over” to the group responsible for taking down a profile and see that it got done.


It did not, and Barnes sued for negligent undertaking, as described in Section 323 of the Restatement (Second) of Torts, and for promissory estoppel.


Barnes claimed that by promising to take down her profile and then failing to do so, Yahoo had undertaken a task that it subsequently completed negligently.  Moreover, Barnes asserted, Yahoo's promise constituted a contract that, once Barnes had relied upon it, the company could not later repudiate.


In response to the complaint, Yahoo moved to dismiss, arguing that Section 230 of the CDA provides Yahoo with immunity from Barnes's claims.  Section 230(c) reads, in part: 

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Yahoo is clearly an “interactive computer service” provider, and it did not create or develop the profiles at issue in whole or in part, so Yahoo should not have liability on any claim that would treat it as the "publisher" of those profiles.


On appeal, the Ninth Circuit held that Barnes’s negligent undertaking claim was barred by the Section 230 because, in the final analysis, what Barnes was alleging that Yahoo failed to do with due care was to remove a profile from its Web site.  That, the court said, is the essence of publishing -- deciding what gets published and what does not -- and Section 230 precludes Yahoo from liability for its actions as a publisher.


However, the court came to a different conclusion with respect to Barnes's promissory estoppel claim.  That claim, the court said, is a contract claim, not a tort claim, and Yahoo’s alleged breach had nothing to do with its role as a publisher.  Rather, Yahoo's potential liability was based on its promise to do something that it later failed to do.


To be clear, in addressing the negligent undertaking claim, the court said that the task that Yahoo had failed to complete constituted publishing and was covered by Section 230, and yet that very same conduct in the context of a contract claim was actionable.


While the court was careful to say that a simple monitoring policy or even “an attempt to help a particular person” will not always give rise to a contract claim, where the facts suggest that the company intended to be bound by its words, a claim might arise.  The court said that the solution for companies like Yahoo is easy -- “disclaim any intention to be bound” in the language of any monitoring policy or when agreeing to help a particular customer.


Leaving aside the particular claims, the court also made an interesting procedural ruling that may actually have more far-reaching impact than the rulings on the particular claims. The case had reached the court on a motion to dismiss in which Yahoo cited Section 230 as the reason Barnes failed to state a claim. The Ninth Circuit made clear that a Section 230 defense is an affirmative defense that is not appropriately asserted as a motion to dismiss, but rather as part of an answer.


For an interesting discussion of the implications of this part of the ruling, see this post on the Technology and Marketing Law Blog, which has posted extensively on this case.