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Guardians of the Nation—A Return to the Framers’ Intent for Freedom of the Press in a World of Citizen Journalism and Police Intimidation

Guardians of the Nation—A Return to the Framers’ Intent for Freedom of the Press in a World of Citizen Journalism and Police Intimidation

Ivy Garlow

This student Note questions whether citizens have a First Amendment right to record police in their official capacities. This Note asserts that citizen whistleblowing increases accountability because, when police action goes unchecked, instances of misconduct increase. The circuits are split over whether the right to record police action is clearly established, and thus some courts have provided qualified immunity to police who stop citizens from recording police activity while others have not.[1]

In 2012, trained legal observer and physiotherapist Amanda Geraci was monitoring an anti-fracking protest outside the Pennsylvania Convention Center.[2]  Geraci alleges that police assaulted and detained her while she was documenting the arrest of a protestor from outside the Convention Center through a glass window.[3] Geraci, represented by ACLU-Pa, filed a lawsuit on September 14, 2014 against the Philadelphia Police Department and the City of Philadelphia, alleging that the detaining officers had violated her First and Fourth Amendment rights.[4] The complaint states, “Officer Dawn Brown approached Geraci in a full run and threw her up against a pillar on the Convention Center’s facade.”[5] Further, the complaint asserts that Officer Brown pushed her forearm against Geraci’s neck while other officers surrounded Brown and Geraci—preventing bystanders from witnessing or recording the interaction.[6] This lawsuit, Geraci v. City of Philadelphia, et al., is the fifth in a string of lawsuits filed by the ACLU-Pa regarding the Philadelphia Police Department’s continued practice of retaliating against individuals for recording official police activity.[7]

First, this Note examines the Framers’ intent in drafting the First Amendment, citing references to a need for a “fourth institution” as an additional check on the three branches of government.[8] Next, this Note analyzes the full circle movement of the American press: from an era of pamphleteers to the formation of media conglomerates and the return to citizen journalism through the advent of the World Wide Web.[9]

The subsequent section of this Note details U.S. Supreme Court jurisprudence regarding the First Amendment. Because the U.S. Supreme Court has never cited an independent freedom of the press, First Amendment freedom of the press jurisprudence tracks freedom of speech jurisprudence.[10] Next, this Note examines the circuit split over whether there is a clearly established right to record police in public.[11] Thus, applying the Framers’ intent for the First Amendment and First Amendment jurisprudence, this Note concludes that citizens have a clearly established right to record police and that police officers that interfere with citizens’ First Amendment rights should be denied qualified immunity.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] Rachel Costello, Courts Split over First Amendment Protection for Recording Police Performance of Public Duties, Reps. Committee For Freedom of the Press, (last visited Feb. 23, 2015).
[2] Complaint at 3, Geraci v. City of Philadelphia, No. 2:14-cv-05264-WY (E.D. Pa. filed Sept. 15, 2014).
[3] Id. at 2.
[4] James Queally, Philadelphia Police Sued by ACLU, Which Says Filming Led to Arrest, L.A. Times (Sept. 19, 2014),
[5] Complaint, supra note 2, at 5.
[6] Id. at 6.
[7] Your Right to Record and Observe the Police, Am. Civ. Liberties Union Pa., (last visited Feb. 23, 2015) (detailing five lawsuits filed by the ACLU-Pa against the Philadelphia Police Department).
[8] Lucas A. Powe, The Fourth Estate and the Constitution 298 (1991).
[9] James Breig, Early American Newspapering, Colonial Williamsburg J. (Spring 2003), available at; Ashley Lutz, These 6 Corporations Control 90% of the Media in America, Bus. Insider (June 14, 2012, 9:49 AM),; Costello, supra note 1.
[10] David A. Anderson, The Origins of the Press Clause, 30 UCLA L. Rev. 455, 457 (1983).
[11] Costello, surpa note 1.

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