On Nov. 1 the U.S. Supreme Court declined to accept for review a decision by the federal Tenth Circuit Court of Appeals in Denver holding that police could not be sued civilly for seizing a computer tablet from a man who had recorded a video of them restraining a drug suspect on a concrete sidewalk and punching the suspect in the head. The appeals court based its decision that the man could not sue on the reasoning that his right to record the police was not firmly established as a legal principle, even though it has been recognized by six other federal appellate courts. (The Fourth Circuit, which includes South Carolina, has not ruled on the issue.)

By taking the case, the U.S. Supreme Court could have definitively ruled—as lower courts have—that citizens have the right to record the police as they perform their duties, as long as the recording does not impede or interfere with the police activity. In this era when videos of police have sometimes revealed bad judgement and unnecessary violence by some officers, it is important for the courts to certify that such recordings are protected by the First Amendment. After all, one of the fundamental rationales for the free speech and free press provisions in the First Amendment is to serve as a watchdog and check on government, including the police.

A First Amendment right to record the police also means that police interfering with that right is a constitutional violation and can be the basis of a civil lawsuit against the police. The case that the Supreme Court declined to review was just such a case, in which the man who recorded Denver police—Levi Frasier—sued after the police requested and then seized his tablet in order to erase the video. The officers did not realize that the video remained intact when they returned the device.

Frasier’s lawsuit claimed the police detaining him and the seizing of his tablet violated his constitutional rights. The federal trial court judge held that the case could proceed, since the police presumably knew that their interference with Frasier’s recording was unconstitutional because that principle was a standard part of their training. But the appeals court disagreed, saying that only a court ruling—from the appeals court itself, which has jurisdiction over Colorado, or from the U.S. Supreme Court, whose rulings apply nationwide—was sufficient to impute such knowledge to the police.

“Judicial decisions are the only valid interpretive source of the content of clearly established law,” the appeals court held. “(W)hatever training the officers received concerning the First Amendment was irrelevant to the clearly-established-law inquiry.” As for the decisions of the other circuits, the Tenth Circuit held that “those decisions do not indicate that this right was clearly established law in our circuit” at the time of incident (emphasis added).

Since there were insufficient legal grounds to establish that the police conclusively knew that their actions were unconstitutional, the court concluded, they are protected from Frasier’s lawsuit by the “qualified immunity” that courts generally apply to police actions. The notion of “qualified immunity” for police officers and whether it should be reformed or even eliminated has been subject to robust debate in recent months. Had the Supreme Court taken the case, it would have provided an opportunity for the court to weigh in on that issue as well.

The result of the Supreme Court’s (in)action is that the Tenth Circuit’s decision in Frasier’s case stands. But that does not necessarily mean that there is no right to record the police in the states covered by the circuit, since the court decided only that such a right did not exist at the time of the incident, in August 2014. It did not answer the question of whether such a right exists now.

So the current state of the law is that six federal circuit courts—the First, Third, Fifth, Seventh, Ninth and Eleventh (which includes Georgia)—recognize a First Amendment right to record the police. The remaining circuits—including the Fourth Circuit, which includes South Carolina—have not ruled on the issue, nor has the U.S. Supreme Court. And by rejecting the appeal in Frasier’s case, the Supreme Court has missed the chance to firmly establish the nationwide right to hold police accountable by recording their actions.

Updates

Appeals Court May Revisit “Actual Malice” Tweet Ruling: Last month I wrote about a troubling decision by the federal Eighth Circuit Court of Appeals holding that California Congressman Devin Nunes could continue a libel lawsuit over a tweet with a link to an article in Esquire magazine, even though the court also held that the article itself was not defamatory. Esquire and the writer have now asked the full appeals court to hear the case, pointing out that the prior decision ignored the widely-accepted “single-publication rule,” which holds that republication of an article—or, as in this case, a link to an article—does not in and of itself create a separate legal claim. This provides an opportunity for the court to rescind its prior decision, which it will hopefully do.

“Actual Malice” Survives, For Now: In the past few years, U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch have both expressed desires to reexamine established media law precedents such as New York Times v. Sullivan, which established the “actual malice” requirement for public officials—later expanded to public figures—in defamation lawsuits. But on Nov. 1 the Supreme Court denied review in two libel cases that would have given the court the opportunity to revisit the Sullivan standard. In one of these cases, an appeals court judge’s dissent was a screed against “actual malice” standard and alleged liberal bias in the media.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.