In a 2-1 decision, the Ninth Circuit wrote that the lower court’s restraining order was too broad because it failed to specify who qualified as a journalist or legal observer. In previous hearings, the federal government had argued that differentiating between journalists and protesters was especially difficult given that some protesters wear press insignia to avoid the police’s crowd control tactics.
The judge extended a preliminary injunction prohibiting federal agents from "arresting, threatening to arrest, or using physical force" against journalists or legal observers. An attorney working with the ACLU on the case called the court's decision "a crucial victory for civil liberties and freedom of the press."
The legislation affirms the right of individuals to record law enforcement activity, and to keep their recordings. The law goes into effect in 30 days.
The First Amendment right to record public officials such as the police performing their official duties in public is central to our democracy. Without the ability to document and disseminate such information, citizens would lack an indispensable tool for keeping the public informed, and for holding their leaders accountable.
While the White House had a legitimate interest in maintaining a degree of control over media access to the White House, U.S. Circuit Judge David Tatel wrote that the administration could not do so in a way that interfered with a reporter’s due process rights.
“No politician likes being the subject of critical coverage, but that comes with elected office, and I would be abdicating my role as a journalist if I failed to hold local government, including the City of Memphis, accountable,” Thomas said in a press statement.
“To allow automatic warrantless seizures of bystanders’ cell phones containing recordings of police interactions without any evidence of exigency would deeply chill the First Amendment right to record, as the public simply would not exercise this constitutional right out of fear that doing so would authorize law enforcement to seize one’s phone and hold it indefinitely,” the complaint reads.
When Collins and another reporter refused to swap seats, the White House official allegedly told the reporters that the matter would be handled by the Secret Service.