The government can’t send you a bill for your free speech

Protesters march during the “Philly is Charlottesville” March and Rally on August 16, 2017 (credit: Ben Bowens)

By Elizabeth Randol, Legislative Director, ACLU of Pennsylvania

Imagine if Dr. Martin Luther King, Jr., future Congressman John Lewis, and their compatriots in the civil rights movement had been stuck paying the fiscal costs of Sheriff Bull Connor’s harassment, beatings, and arrests. Under a proposal before the Pennsylvania Senate, people who take to the streets to express their political views would have to do exactly that if they end up on the wrong side of the law.

On August 16th, four days after the white supremacist demonstrations in Charlottesville, Virginia, Senator Scott Martin (R-Lancaster) introduced a bill that could hold protesters liable for public safety costs associated with demonstrations. But despite the timing, Charlottesville wasn’t the primary trigger for this proposed legislation; the Dakota Access Pipeline protests were.

Under Senate Bill 754, courts could hold individuals convicted of protest-related misdemeanors or felonies liable for all public safety costs associated with demonstrations. This legislation is most certainly unconstitutional and would likely be struck down in federal court, but only after a costly legal fight.

While it may bother the primary sponsor and his friends in the energy industry that people of indigenous heritage opposed the pipeline, public protests and demonstrations are strictly protected by our First Amendment rights to free speech and assembly. The expression of those rights may sometimes incur costs, but those are collective public safety expenses which are collectively paid by us through our taxes.

SB 754 proposes two worrisome legal changes, both of which are certainly unconstitutional. First, it unreasonably expands the definition of liability. Individuals convicted of protest-related misdemeanor or felony offenses can be forced to pay for costs not directly resulting from their actions or even related to the crime of which they were convicted. Courts, of course, can already impose fines and restitution costs for expenses associated with a specific offense. But it would be unconstitutional to hold someone — even those convicted of protest-related offenses — liable for costs associated with other people’s actions or costs incurred to provide general public safety support at a demonstration.

Second, SB 754 selectively narrows the potential targets of this expanded liability. General public safety costs are recovered only from specific people engaged in a specific kind of activity, namely protesters exercising their constitutionally-protected rights to speech and assembly.

If this bill is enacted, it is doubtful it could withstand a constitutional challenge. In order to protect the First Amendment freedoms of speech and association, the Supreme Court has sharply limited the government’s authority to impose liability on organizations or their members for misconduct or criminal acts that occur during political demonstrations. Lower courts have similarly rejected attempts to hold demonstrators liable on the grounds that the government can recover their costs through existing civil and criminal sanctions against those directly responsible.

Furthermore, because municipalities generally do not impose responsibility for using public spaces on particular users, holding protesters liable would place an intolerable burden on their constitutional rights. In this context, the measures proposed in SB 754 are constitutionally suspect.

Equally alarming but no less important is the chilling effect this legislation would have on free speech and assembly. The prospect of being held liable for demonstration costs if, for example, you are convicted of obstructing a sidewalk (a misdemeanor offense), may well provide a strong disincentive to participate at all.

SB 754 is not the only bill targeting demonstrators. SB 652 was introduced by Senator Mike Regan (R-Cumberland and York) in April. It, too, was crafted in response to the Dakota Access Pipeline protests. SB 652 creates a new category of properties, comprised of eighteen different types of critical infrastructure facilities, and imposes severe penalties for criminal trespassing on those properties. In many cases, what are currently summary or misdemeanors offenses are enhanced to second and first degree felonies under this proposed legislation.

Even if neither bill is enacted, the measures they propose offer valuable insight into how our legislators perceive public protests and the worrisome ways they choose to respond.

Free speech is free. The government can’t send you an invoice.

Elizabeth Randol is the legislative director of the American Civil Liberties Union of Pennsylvania.

A Small Town in Pennsylvania Is Treading on This Naval Officer’s First Amendment Rights

By Witold Walczak, Legal Director, ACLU of Pennsylvania

Pictured: Lt. Com. Joshua Corney stands in front of his loudspeakers on his property in Glen Rock, Pennsylvania.

Lieutenant Commander Joshua Corney, an active duty naval officer who lives in rural Pennsylvania, returned from combat zones in Iraq and Afghanistan with a promise. As he settled back into life stateside, he wanted to offer a meaningful tribute to his fellow service members — especially those who never had the chance to come home.

So, in 2015, he started playing a recording of taps — a military bugle call most often heard at sunset and at military funerals — on his five-acre property in Glen Rock, a small town of 2,000 people near the Pennsylvania-Maryland border. Every evening before 8:00 p.m., Lt. Commander Corney would offer the musical testament to all who have served.

“I play this audio memorial in remembrance of those who paid the ultimate sacrifice as well as those who continue to serve and protect our country and freedoms,” said Lt. Commander Corney, who is represented by lawyers from the ACLU of Pennsylvania. “It is a way to honor a promise I made to God — by taking 57 seconds each day to reflect on sacrifices made 24 hours a day, 365 days a year to obtain and sustain our freedoms.”

For nearly two years, his tribute went on with little controversy. The borough allows other music to be amplified on a regular basis, including church hymns and bells and live performances at a local restaurant. At less than a minute long, the recording of taps was one of the borough’s shorter pieces of amplified music. When one neighbor approached Lt. Commander Corney about a year ago to ask if he could turn down the volume, Corney accommodated the request by reorienting the speakers away from the neighbor’s home. But this spring, the controversy erupted when another neighbor complained to the borough.

In response, the borough ordered Corney to limit the playing of taps to Sundays and what it termed “flag holidays.” Each violation of the borough’s order would bring a criminal fine of 300 dollars. But the borough’s enforcement action involves two big constitutional no-nos: the heckler’s veto and content-based censorship.

The borough is relying on a nuisance ordinance that prohibits sound that “annoys or disturbs” others. In a patriotic town like Glen Rock, which is home to many military veterans, it’s no surprise that Lt. Commander Corney has many supporters. But a single complaint triggered the enforcement action. If a “heckler” could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.

Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corney’s musical expression for censorship from the range of sounds that are part of the borough’s regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.

And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates — including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.

The borough has decided that taps alone, among the other musical sounds in the borough, must be silenced. The borough may not make this type of “content-based” distinction without some compelling reason, which doesn’t exist in this situation.

Last week, the ACLU of Pennsylvania sent a letter to the borough council to insist that Glen Rock drop its threat to fine Lt. Commander Corney and honor his First Amendment right to free expression. The dispute is not yet resolved, but on Friday the borough indicated that it would review the ACLU’s demand at its regularly scheduled July 19 meeting. In the meantime, Lt. Commander Corney will resume his nightly ritual.

Free-speech cases often arise in unusual settings. Some people may be surprised that a serviceman’s broadcast of taps — a song widely regarded as patriotic and intended to honor the sacrifices of those who place themselves in harm’s way to fight for our constitutional rights — would end up being the focus of a First Amendment censorship battle. This controversy is a reminder that no matter who you are or your station in life, you may need the Constitution.

Originally posted at Speak Freely by the ACLU.

The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania

No, It’s Not Illegal to Record the Philadelphia Police!—Fields/Geraci Ruling Explained

Fields Citation_Cropped_Redacted

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

On February 19, 2016, a federal trial court judge in Philadelphia ruled that there is no First Amendment right to record the police—unless you make it clear that you are recording for the purpose of criticizing the police. The ruling has confused lawyers and non-lawyers alike. We’ll break it all down for you.

What was the case about?

The ACLU-PA has filed several lawsuits against the City of Philadelphia on behalf of people who were arrested or detained for attempting to photograph or record the Philadelphia police performing their duties in public. The ACLU alleges that, for years, the City has ignored substantial evidence that Philadelphia police officers routinely retaliate against people who record them, and has failed to adequately train, supervise, or discipline officers. The two plaintiffs in these cases, Rick Fields and Amanda Geraci, filed the fourth and fifth lawsuits in the series.

In September 2013, Rick Fields, a Temple undergraduate student, observed approximately 20 police officers clearing out a house party across the street. He paused on the sidewalk to take a photo of the scene with his iPhone, and a police officer asked him whether he enjoyed photographing grown men and ordered him to leave. The officer then arrested Fields and cited him with obstructing a highway.

In September 2012, Amanda Geraci was serving as a legal observer at an anti-fracking protest at the Convention Center. When a protestor got arrested, Geraci tried to take photos of the arrest (as legal observers are trained to do), and a police officer pinned her up against a column and restrained her across the neck.

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What happened in the trial court?

The trial court granted what’s known as “summary judgment” to the defendants, throwing out Fields’ and Geraci’s First Amendment claims. Here’s how the judge who decided the case, the Honorable Mark A. Kearney, framed the issue:

[Rick Fields and Amanda Geraci] never told the police why they were capturing images of the police interacting with people they did not know. They were watching their police officers in action and wanted to capture the images because, at least for one of the citizens, “[i]t was an interesting scene. It would make a good picture” and for the other because she is a legal observer trained to observe the police. The question is whether citizens also enjoy a First Amendment right to photograph police absent any criticism or challenge to police conduct.

Judge Kearney’s answer was “no.” Here are excerpts of his explanation:

Neither [Fields nor Geraci] uttered any words to the effect he or she sought to take pictures to oppose police activity. Their particular behavior is only afforded First Amendment protection if we construe it as expressive conduct. . . .

Fields and Geraci essentially concede they spoke no words or conduct expressing criticism of the police before or during their image capture. They instead want to persuade us “observing” and “recording” police activity is expressive conduct entitled to First Amendment protection as a matter of law. In their view, observing is a component of “criticizing” and citizens may engage in speech critical of the government. We find no controlling authority compelling this broad a reading of First Amendment precedent.

Is the ACLU appealing?

Heck yes. We filed notices of appeal on March 21, 2016.

What have other courts said about whether there’s a First Amendment right to record the police?

The ability to scrutinize the actions of public officials is at the core of what the First Amendment is supposed to protect. The First Amendment protects access to information about the government as well as free expression. So every federal appeals court in the last decade and a half that has considered whether there’s a First Amendment right to record the police has ruled that, yes, there is. In other words, Judge Kearney’s ruling goes against the weight of authority. The U.S. Court of Appeals for the Third Circuit (the federal appeals court that covers Pennsylvania) hasn’t yet addressed that question. But the Fields and Geraci appeals will allow the Third Circuit a chance to weigh in soon.

Does the trial court decision in Fields and Geraci mean it is currently illegal to record the police in Philadelphia? Can I now be arrested in Philadelphia for taking pictures of the police?

NO! Even if there were no constitutional right to record the police (and, again, we think there absolutely is such a right), that doesn’t make it illegal to record the police. There is no law that prohibits you from recording the police. Police can only stop you or arrest you if they suspect you of a crime. Recording the police is not a crime. So it’s not a valid basis for a stop or an arrest.

And it’s worth noting that the Philadelphia Police Department agrees with the ACLU’s view of the First Amendment. Since November 2012, the official written policy of the Philadelphia Police Department has said that civilians do have a First Amendment right to record the police, and that police officers should expect to be recorded when they are out in public, and should not interfere with attempts to record them.

So by all means, go download our Mobile Justice app, and use it to record the police in public places. Civilian recordings are a vital tool for deterring police abuse and holding the police accountable when they cross the line. And if you have any questions about what you can and can’t do in Pennsylvania, read our “Know Your Rights” brochure about the right to record the police. Judge Kearney’s ruling doesn’t change anything in there.

So if I am still free to record the police, why does it matter whether or not the First Amendment protects that right?

Without a recognized First Amendment right to record the police, a legislature could pass a law making it illegal. Sound crazy? Well, Texas already tried to pass a law that would prohibit anyone standing within 25 feet of a police officer from recording them—whether or not they were in any way interfering with police activities. Constitutional protection is necessary to prevent that kind of legislative attack on our fundamental freedoms.

In addition, having the courts recognize a First Amendment right to record the police sends an important message. Like many public officials, police officers take an oath to uphold the Constitution. It’s important to establish that protecting the Constitution means respecting the public’s right to observe and record the police—a critical means of holding the police accountable for misconduct.

Molly-Tack-HooperMolly Tack-Hooper started at the ACLU of Pennsylvania as a volunteer legal fellow in 2010-2011 and returned in 2013 as a staff attorney focusing on civil liberties issues arising in Central Pennsylvania and on immigrants’ rights. Molly is an active member of the Philadelphia Bar Association, serving as co-chair of the Civil Rights Committee in 2015 and 2016 and vice-chair of the Public Interest Section in 2016.

Questions about the Pope’s Philadelphia visit? We have (some) answers

Pope Francis in St Peter's square - Vatican (credit: Alfredo Borba)

Pope Francis in St Peter’s square – Vatican (credit: Alfredo Borba)

Many people have contacted us with questions about the Pope’s upcoming visit to Philadelphia September 26-28. The ACLU-PA and other groups are monitoring plans for the Pope’s visit. Here’s the latest information we have.

  • So far, there are NO plans to check IDs for people walking around or entering and leaving Center City. If we hear of such a thing, we will sue.
  • There WILL be a secure fence with check point entrances, but it looks like that will be just around the Parkway and some office buildings beside the Parkway. You should be able to walk everywhere else.
  • There WILL be a ban on cars and very restricted public transit in Center City.
  • The ACLU-PA is calling on the city and the Secret Service to give the public more information about the security plans.
  • The city has promised that Philadelphia will not foot the bill for this event.
  • If you want to PROTEST during the Pope’s visit, you should apply for a permit NOW. If you have any trouble or questions about protesting, call the ACLU-PA at 215-592-1513.

It’s Free Speech Week! So how did Pennsylvania celebrate?

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

(13th and Locust, Philadelphia, PA. October 21, 2014, credit: Ben Bowens)

Free Speech Week is October 20-26. Here in the commonwealth, Governor Tom Corbett celebrated by signing a bill that allows courts to censor speech before it happens.

Wait, huh? What?

On Tuesday, Corbett signed the so-called “Revictimization Relief Act,” or what I’ve taken to calling the Free Speech Decimation Act. Perhaps it would be better to title it the Fund the Lawyers Act.

Senate Bill 508 allows a district attorney or the Attorney General or the victim of a “personal injury” crime to seek an order from a civil court to block the “conduct” of a person with a criminal conviction if the conduct “perpetuates the continuing effect of the crime on the victim.” That phrase is defined as “conduct which causes a temporary or permanent state of mental anguish.”

If you know what that is, please drop us a line.

This new law is riddled with free speech problems. It is government censorship of speech that powerful people do not want to hear. Any person with a criminal conviction, whether he is currently incarcerated or was released years or decades earlier, would have his ability to speak publicly about his experience, the criminal justice system, or any unknown thing effectively chilled. Why speak up when there is a chance you’ll be hauled into civil court?

On numerous occasions, people with criminal convictions have spoken at press conferences and have testified at hearings at the state capitol. This new law chills that type of advocacy. If this law had been in effect a few years ago, would we know the story of Stacey Torrance, who is serving life-without-parole? Stacey was 14 when he participated in a robbery that ended in murder. The victim was killed 24 hours after Stacey left the scene of the robbery.

Would we know the story of Edwin Desamour, who at 16 faced the death penalty, was ultimately convicted of third-degree homicide, and served eight and a half years in prison? After his release, Edwin helped found Men in Motion in the Community, or MIMIC, to work with at-risk boys in Philadelphia.

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What happens to the Pennsylvania Prison Society’s publication Graterfriends? The Prison Society offers inmates an outlet to write about their personal experiences and about public policy issues.

All of this valuable speech is potentially chilled by this new law.

The General Assembly passed this bill in record time after Mumia Abu-Jamal gave a recorded speech to 20 graduates of Goddard College in Vermont. In the speech, Abu-Jamal made no mention of the crime for which he was convicted, the shooting death of Philadelphia Police Officer Daniel Faulkner, and only briefly alludes to being on death row. You can read or listen to the speech here.

A reporter asked me the other day if it is difficult advocating for the rights of people who are deeply disliked. I replied that we wouldn’t need the First Amendment if we only allowed popular speech. The right to free speech exists to ensure that even unpopular ideas or unpopular people are heard.

The answer to speech you don’t like is more speech to counter it, not government censorship. We look forward to discussing the First Amendment with the commonwealth in a court of law.