ASNE joined 62 other media organizations and companies in an amicus brief, which asks the United States Court of Appeals for the Second Circuit to hold, for the first time, that there is a First Amendment-based right to record the activities of the police.
The brief stems from a case involving Doug Higginbotham, a photojournalist who was arrested while shooting photos of an Occupy Wall Street protest in 2011 from atop a phone booth. The charges were dismissed by the local district attorney, at which point Higginbotham filed a civil rights lawsuit against the arresting officers for violation of his First Amendment rights. A U.S. District Court judge rejected the officers’ attempts to dismiss the case and held that there exists a First Amendment “right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded” and that this constitutional right was “‘clearly established’ at the time of the events alleged in the complaint.” The case was appealed to the U.S. Court of Appeals for the Second Circuit.
Our amicus brief sides with Higginbotham but, in reality, argues for a legal precedent rather than supporting on party. Specifically, the brief argues: (1) that this case, in particular, demonstrates the necessity of a court ruling upholding a constitutional right to record police activity in public places and (2) the court should recognize that First Amendment right and declare it is “clearly established.”