Using the February 2016 federal district court ruling in Fields v. City of Philadelphia as an analytical springboard, this Article examines growing judicial recognition of a qualified First Amendment right to record images of police working in public places. The Article argues that Judge Mark Kearney erred in Fields by requiring that citizens must intend to challenge or criticize police, via either spoken words or expressive conduct, in order for the act of recording to constitute "speech" under the First Amendment. It asserts that a mere intent to observe police-not to challenge or criticize them-suffices. It then also explores how recording falls within the scope of what some scholars call "speech-facilitating conduct." Additionally, the Article criticizes the district court's view in Fields, as well as that of the Southern District ofN ew York in 2015, suggesting that the right to record is possessed only by journalists, not by all citizens.
Clay Calvert, The Right to Record Images of Police in Public Places: Should Intent, Viewpoint, or Journalistic Status Determine First Amendment Protection?, 64 UCLA L. Rev. Discourse 230 (2016)