First Amendment Under Attack in Federal Court

Originally Posted 15 June 2017

 
 

First Amendment Under Attack in Federal Court

The First Amendment is under attack by the government in federal court. Matt Akins of Citizens For Justice filed a lawsuit against the Columbia Missouri Police Department claiming retaliation for filming police officers and reporting on their activities. Judge Nanette Laughrey of the U.S. Court for the Western District of Missouri granted summary judgment to the City of Columbia and police officers named in Akins’ suit, ruling “Neither the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.” The judge’s ruling came in response to a long line of incidents involving alleged false arrests, wrongful seizures, a CPD Wanted Poster for Akins depicting Akins as an armed criminal, using one of the false arrests that were sealed by law and deprivations of Akins’ property and police threats to retaliate against his employers.
Oral arguments were made on June 8, 2017, hearing in federal appellate court in St. Louis, Missouri. Arguments centered on two First Amendment issues involving Akins and his “Media Militia.” In the summer of 2011, Akins attempted to film an activist filing a misconduct complaint against a Columbia Police Officer in the department’s public lobby. In response, a uniformed member of the Columbia Police Department ordered Akins to cease filming. The second issue revolved around Citizens For Justice videos Akins posted on the department’s Facebook page depicting officers in a negative light which were later deleted by the department during a debate about the Citizens Police Review Board’s oversight authority.
A panel of the 8th Circuit U.S. Court of Appeals Judges (Melloy, Loken, and Murphy) seemed skeptical of the rights established by the First Amendment during questioning at oral arguments on June 08, 2017, at the Eagleton Federal Courthouse in St. Louis, Missouri. Whether that right protected the filming of a citizen who had peaceably assembled to petition his government for a redress of grievances. Leaving the First Amendment in the crosshairs in another federal court.
Do You Have A Right To Film Police In A Public Lobby?

Matthew Akins of Citizens For Justice is ordered to cease filming in the Columbia Police Department’s lobby. Akins was filming Marlon Jordan, an African-American man who dresses in Ku Klux Klan regalia to protest systemic racism in the Columbia and Boone County, MO Criminal justice system.
The First Amendment (1789) states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (emphasis added)

First Amendment Under Attack In Federal Court

This District Court also held where the City of Columbia had established an open Columbia Police (CPD) Facebook forum giving citizens the option to “post by others” on the City’s Facebook page. A designated public forum that Matt Akins had used the “post by others” option to post six different reports he had made on behalf of Citizens For Justice on this designated public forum critical of police conduct. During this time period, CPD Police Chief Burton had proposed neutering the Citizens Police Review Board’s oversight ability over police misconduct. [ Columbia Missourian stories] In the middle of this debate about taking away oversight powers from CPRB that Matt Akins posted his sixth report for Citizens For Justice about testimony before the CPRB by “Officer Lori Simpson testifies why she turned off her body mic off during Derek Billups incident.” Chief Burton frustrations with the use of this public forum to debate the performance of Columbia Police Officers served as the likely catalyst for censorship. Censorship that resulted in all six of Matt Akins’ Citizens For Justice reports on Police misconduct and CPRB oversight being deleted from the CPD Facebook page and prohibition of any non-government message thereafter.

CITIZENS FOR JUSTICE

The federal court approved of the City of Columbia censoring and removing Matt Akins’ six reports:
1.ECF # 92, Ex #16 Citizens For Justice video report, “This is How Officers Should React to you Video Taping them” (Ex.#16);
2. ECF # 92, Ex #17 Citizens For Justice video report, “Another Spotlight Shined at CFJ Camera”;
3. ECF # 92, Ex #18 Citizens For Justice video report, “Officer Steve Wilmouth Uses a TASER to Subdue a Man on Providence Road” (Ex# 18);
4. ECF # 92, Ex #19 Citizens For Justice video report, “Careless and Imprudent Driving ? CPD Police Car Swerves Multiple Times in Front of CFJ Camera” (Ex.# 19);
5. ECF # 92, Ex #20 Citizens For Justice report, “Police Standoff: CFJ’s Camera Vs. a Patrol Cruiser Spotlight”;
6. ECF # 92, Ex #21 Citizens For Justice video report, “Officer Lori Simpson testifies why she turned off her body mic off during Derek Billups incident.”

A playlist of videos Matthew Akins of Citizens For Justice posted on the Columbia Police Department’s Facebook. The videos were later deleted by the department.
DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999), cert. denied, 120 S.Ct. 1674 (2000) A designated public forum exists where “the government intentionally opens up a nontraditional forum for public discourse.” Id. “Restrictions on expressive activity in designated public fora are subject to the same limitations that govern a traditional public forum,” i.e., strict scrutiny. Id. at 964-965. CPD’s “Post by Others” on its social media Facebook page resulted in six CFJ Reports from May through July 2011, before the City of Columbia enacted its censorship regime.
As the Supreme Court observed in.” Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788, 797 (1985), government intent is the essential question in determining whether a designated public forum has been established: The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse. Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum. The Court has also examined the nature of the property and its compatibility with expressive activity to discern the government’s intent. 473 U.S. at 802 (emphasis added) (citing Perry, 460 U.S. At 46). The “policy” and “practice” inquiries are intimately linked in the sense that an abstract policy statement purporting to restrict access to a forum is not enough. What matters is what the government actually does -specifically, whether it consistently enforces the restrictions on the use of the forum that it adopted.

CENSORSHIP

The City’s censorship coincides with an effort by the CPD to persuade the Columbia City Council to dramatically weaken the oversight of the Citizen’s Police Review Board (CPRB) (App p 638) and Akins reporting for CFJ is the type of effort that the Supreme Court was concerned about being censored in Cornelius you may not “suppress expression merely because public officials oppose the speaker’s view.” Id., at 797 and because Akins’ CFJ report regarding “Officer Lori Simpson testifies why she turned off her body mic off during Derek Billups incident”, involved her testimony before the CPRB it clearly indicates that this was viewpoint discrimination to silence a contrary viewpoint that was being advocated by Chief Burton and the Columbia Police Officers Association with regard to the oversight of the CPRB.

RIGHT TO FILM POLICE

The District Court relied upon death penalty execution case where a request had been made to film inside the death chamber during the execution of the condemned. The Court cited See Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004) (“[N]either the public nor the media has a First Amendment right to videotape, photograph, or make audio recordings of government proceedings that are by law open to the public.”” (Add p 59)
The District Court reliance upon Rice is misplaced. Rice is 1st Amendment challenge to film an execution. The Government satisfied a strict scrutiny challenge in Rice due to the compelling need for safety in the death chamber and that the death chamber is not a traditional public forum since it is under the complete control of the prison. Reasonable restrictions by the government in such an environment may be consistent with the 1st Amendment. For Citizens For Justice and Matt Akins the CPD Lobby was open 24 hours a day, was the designated point where citizens were to file a misconduct complaint(s)/petition(s) the government for a redress of grievances. Contained a “Media Advisory” book on 24-hour arrest reports and information displays and handouts for the public. In addition, it contained a memorial to fallen Officer Molly Bowden. Memorials are designated points where people gather to remember and pay tribute to a particular person or event. The fact the government had designated the CPD Lobby as the point for exercising a specific right listed within the 1st Amendment requires that this always open lobby be considered a traditional public forum subject to strict scrutiny analysis of rights.
Citizens for Justice and Matt Akins assisted activist Marlon Jordan by documenting his filing of a police misconduct complaint and their actions were consistent with the protections of the 1st Amendment. Marlon Jordan is a black man who has consistently protested institutional racism in law enforcement and the courts by donning a Ku Klux Klan hood during his protests. The order to Matt Akins from this uniformed CPD employee acting pursuant to Chief Burton’s policy that the CPD Lobby was not a traditional public forum and filming was not permitted was a violation of Matt Akins of Citizens For Justice and Marlon Jordan’s 1st Amendment rights. Chief Burton’s policy declaration was insufficient to change the operating nature of this traditional public forum into a non-public forum and violated both Matt Akins of Citizens For Justice and Marlon Jordan’s 1st Amendment Rights at the end of summer 2011.
Glik v. Cunniffe, 655 F.3d 78, (1st Cir. 2011), held, “It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit the government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (“It is … well established that the Constitution protects the right to receive information and ideas.”). An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’ ” Houchins v. KQED, Inc., 438 U.S. 1, 11, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681–82, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)).
Matt Akins and/or Citizens For Justice filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966).
Moreover, as the Court has noted, “[f]reedom of expression has particular significance with respect to the government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.’ ” First Nat’l Bank, 435 U.S. at 777 n. 11, 98 S.Ct. 1407 … This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035–36, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (observing that “[t]he public has an interest in [the] responsible exercise” of the discretion granted police and prosecutors).
Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034–35, 111 S.Ct. 2720 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a [655 F.3d 83] salutary effect on the functioning of government more generally, see Press–Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (noting that “many governmental processes operate best under public scrutiny”).
In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999), a local journalist brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway outside a public meeting of a historic district commission. The commissioners had objected to the plaintiff’s filming. Id. at 18. When the plaintiff refused to desist, a police officer on the scene arrested him for disorderly conduct. Id. The charges were later dismissed. Id. Although the plaintiff’s subsequent § 1983 suit against the arresting police officer was grounded largely in the Fourth Amendment and did not include a First Amendment claim, we explicitly noted, in rejecting the officer’s appeal from a denial of qualified immunity, that because the plaintiff’s journalistic activities “were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them.” Id. at 25 (emphasis added).
Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts. See, e.g., Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir.2000) (“The 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.”); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of public interest”); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F.Supp.2d 82, 94–95 (D.Mass.2002) (finding it “highly probable” that filming of a public official on street outside his home by contributors to public access cable show was protected by the First Amendment, and noting that, “[a]t base, plaintiffs had a constitutionally protected right to record matters of public interest”); …
It is of no significance that the present case, unlike Iacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press. Houchins, 438 U.S. at 16, 98 S.Ct. 2588 (noting that the Constitution “assure[s] the public and the press equal access once the government has opened its doors”); [655 F.3d 84] Branzburg, 408 U.S. at 684, 92 S.Ct. 2646 (“[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.”).
Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film. See, e.g., Smith, 212 F.3d 1332; . . . Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.
To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. See Smith, 212 F.3d at 1333. . . . On the facts alleged in the complaint, Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are “sharply circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). . . . Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment in cross hairs as challenged rights. See City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462–63, 107 S.Ct. 2502. . . . 2. Was the Right to Film Clearly Established? Though the “clearly established” inquiry does “not require a case directly on point,” al-Kidd, 131 S.Ct. at 2083, we have such a case in Iacobucci. What is particularly notable about Iacobucci is the [655 F.3d 85] brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space. See Smith, 212 F.3d at 1333; Fordyce, 55 F.3d at 439. This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment’s protections in this area. Cf. Lee v. Gregory, 363 F.3d 931, 936 (9th Cir.2004) (noting that some constitutional violations are “self-evident” and do not require particularized case law to substantiate them). We thus have no trouble concluding that “the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional.” Maldonado, 568 F.3d at 269.” Id ., 83-85 (emphasis added)
With the fragmented nature of the federal courts since 1988. A two-tiered application of what the American Constitution means has arisen. American Constitutional rights are vibrant and enforced in 9 of the 11 regional U.S. Circuit Courts of Appeals. In the other 2 of the 11 regional federal circuit court of appeals, a lower tier of “lesser Americans” under the law has developed. This development is discussed more fully in my Huffington Post article: How America’s Legal System Devolved into the Game of Thrones.
With the U.S. Supreme Court taking only sixty some cases each year the federal circuit courts of appeal have largely become the de facto arbiters of what our rights are as Americans mean. With two federal circuits that freely ignore on-point U.S. Supreme Court precedent, a schism in American law has expanded. With the First Amendment in Cross Hairs in federal court in a controversial circuit. As “lesser Americans” living within the seven states of the Eighth Circuit U.S. Court of Appeals, we wait to learn if this continued degradation of our rights also includes those rights protected by the First Amendment. Citizens that are lucky enough to live within a federal circuit court of appeals that upholds all of our Constitutional rights will still be impacted by this ruling. Citizens For Justice and Matt Akins continue the fight to uphold a vitality of the First Amendment from government censorship. If the Eighth Circuit affirms this lower court precedent and erodes the protections of the First Amendment its impact will expand. This precedent could spark further attacks by President Trump’s Administration on the free press. The Trump Administration that has already explored the option of arresting critical journalists. In an effort to limit the role of a free press in promoting the accountability of government, currently protected by the First Amendment.

About Post Author

Stephen Wyse

Lawyer, former Democratic political consultant, former legislative aide to Missouri State Senator, former Investigator for the state of Missouri, former U.S. Army Military Police sergeant and investigator

Wyse Law Firm, P.C.

 (573) 449-7755 | swyse@wyselaw.com

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Stephen Wyse

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