I. THE LOWER COURTS CORRECTLY HELD THAT THE OFFICERS APPROPRIATELY RESTRICTED PETITIONER’S UNLAWFUL RECORDING BECASUE IT VIOLATED FIRST AMENDMENT REASONABLE TIME, PLACE, AND MANNER RESTRICTIONS.
A. The First Amendment is not absolute; it is subject to reasonable time, place, and manner restrictions
Sergeant Cagney’s restriction on Petitioner’s recording was appropriate because the First Amendment does not allow an unrestricted right to gather any and all information. See Zemel v. Rusk, 381 U.S. 1, 17 (1965). In specific, the Supreme Court has recognized that the First Amendment protects the right to gather news, but this right is not equally permissible in all circumstances. Ramos v. Carbajal , 508 F. Supp. 2d 905, 917 (D.N.M. 2007) (quoting Frisby v. Schultz, 487 U.S. 474,479 (1988)). In particular, any First Amendment right of speech which may exist is subject to reasonable time, place, and manner restrictions. See, e.g., Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011); Kelly v. Borough of Carlisle, 622 F.3d 248, 262-263 (3d Cir. 2010); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the First Amendment right to film is not absolute, but subject to reasonable limitations).
Even when police officers are performing their duties in public places, the right to record is subject to time, place, and manner restrictions. Notably, in Glik, 655 F.3d at 84, the plaintiff alleged that his First Amendment rights were violated when he was prohibited from filming police activities on a public park. While Glik held the plaintiff had a First Amendment right to film police conduct in this particular context, the Court acknowledged that the First Amendment is nonetheless subject to reasonable time, p...
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...Orenlas were far from the encounter, at the hood of the truck. Unlike Petitioner, Ornelas did remove herself from the situation; therefore, classified as a bystander. Furthermore, it is evident that Ornelas and Reed were from a “comfortable” remove, because the police officer had to run up to Ornelas to prevent her from recording the encounter. Id. at 208. Given that there was enough room to run, it can be assumed that she was a far enough distance from the encounter. Similarly, in Glik, the plaintiff was recording the arrest of an individual in a public park. 655 F.3d at 84. It is unquestionable that the plaintiff was a bystander because he was not the subject of the arrest and approximately ten feet away from the officer as he performed the arrest. Petitioner, on the other hand, was the suspect of the residential break-ins; therefore, he is not a mere bystander.
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