Affirming the right of citizens to photograph law enforcement activities, the US Court of Appeals for the Ninth Circuit has reinstated a claim by activists who sued the U.S. Customs and Border Patrol (CBP) for stopping them from photographing CBP activities and destroying their photographs.
“The First Amendment protects the right to photograph and record matters of public interest,” the appeals court said in its August 14 ruling. “This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places.”
Border policy activists Ray Askins and Christian Ramirez sued the Department of Homeland Security (which oversees CBP) in 2012 after they were stopped in separate incidents of documenting border activity. Both plaintiffs say they were photographing legally from CBP property (which is public) at border crossings in California. They claimed violation of their First Amendment rights.
CBP policies state that members of the media must obtain permission from CBP in advance to photograph or record inside or outside of port-of-entry buildings. The plaintiffs weren’t challenging the indoor restrictions, but alleged that CBP was illegally enforcing a total ban on photography, including photographs taken from public streets and sidewalks on property owned or leased by CBP.
A U.S. District Court dismissed their claims, on the grounds that CBP’s policies amounted to “the least restrictive means of serving the compelling interest of protecting the United States’s territorial sovereignty.” The lower court later refused to consider an amended complaint, which the plaintiffs filed in 2015.
The Appeals court said in its ruling this week that the lower court erred in dismissing the amended complaint on procedural grounds. More importantly, though, the Appeals Court said the lower court erred in dismissing the original complaint because there was insufficient evidence that CBP policies met the “least restrictive” test. The appeals court explained that the lower court’s ruling did little more than take the government at its word that its actions were justified, adding: “[T]he government had the burden of demonstrating that its restrictions on speech were the least restrictive means necessary to serve a compelling government interest.”
The appeals court went on to say in its ruling: “Without question, protecting our territorial integrity is a compelling interest that could justify reasonable restrictions on speech activities at ports of entry…But the devil lies in the details: ‘Even at the border, we have rejected an ‘anything goes’ approach.’”
The appeals court sent the case back to the lower court, with orders to examine more closely the specific facts of both incidents involving the two plaintiffs. In particular, the lower court must consider the locations from which the plaintiffs were photographing, and whether those locations qualify as “public fora”—i.e., public streets or sidewalks—where First Amendment rights generally apply.
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