My former mean-ass editor at Fault Lines, Scott Greenfield, used to tell all of us that we had a duty not to make people dumber when we wrote articles as part of the media. So when I saw the first comments on Akins v. Knight, et al.,* on the various media sites claiming that the Eighth Circuit ruled that there was no First Amendment right to film police officers in public, I was concerned. Then I read the opinion, and the order of the District Court. Imagine my surprise when I found that neither document said anything of the sort.
As far as I can tell, the story first hit the news at KRCG in Columbia, Missouri, and then spread like wildfire through the internet. The headline was “Eighth Circuit: Citizens do not have a right to film public officials in public.” That would, in fact, be news if that’s what the opinion and order said, but its not. Instead, it appears as if the reporter took the story directly from the plaintiff’s attorney and ran with it. The story says that Akins was arrested numerous times for “his actions,” leaving an impression that the arrests were for filming the police.
Only that’s not the case. Akins was arrested for marijuana, for carrying a concealed handgun, for carrying a butterfly (switchblade) knife, for driving with a revoked license, and for outstanding warrants. He was never arrested for filming the police, and the District Court order notes that the Chief of Police advised his officers that Akins had the right to film them in public. Every arrest was for a criminal offense unrelated to filming police and was supported by probable cause.
The District Court order also discusses an invitation-only media training event that Akin tried to RSVP for even though he was not invited. The Court noted, correctly, that the public and the media do not get special access to events, nor do they have the right to insist on filming or recording any event that they want to record. This deals with access, that Akin, a member of the nontraditional media, wanting access to an event for the traditional media, and that was limited to 30 invitees due to space concerns. Akins simply does not have a constitutional right to invite himself to a meeting merely because he wants to film the meeting. The District Court noted:
Akins was not a member of the traditional media, nor does the record show he was an active nontraditional media member at the time. Space was limited. These were content-neutral reasons not to create an exception for Akins to attend the invitation-only event. The media does not enjoy a right of equal access or special First Amendment rights.†
The Eighth Circuit opinion didn’t address any of that. In a per curiam opinion, the appellate opinion focused on the motion for the judge to recuse herself, and affirmed the denial of that motion. The entire comment on the arrests and filming in the opinion was short and sweet:
Akins also argues that the district court erred by granting the motions to dismiss and for summary judgment filed by the defendants and by denying his own motion for partial summary judgment. After careful de novo review, we conclude that the district court did not err in its thorough and well reasoned opinions. Accordingly, we affirm.‡
Nowhere did the Eighth Circuit say anything about filming police officers in a public place. But that’s what the headline was, in a story where Akins’s attorney was telling the reporter that he was asking for a rehearing and was considering asking the U.S. Supreme Court to look at the case. It would be much easier to get the Supreme Court to grant certiorari if there was a circuit split—except there’s not one.
Now that it was published by KRCG, every blog in creation has picked up the story and is now screaming that the sky is falling.
You want to know what I find especially gratifying? Over at PoliceOne, some idiot staff member ran with the same story. The cop members overwhelmingly called BS, having taken the time to actually read the opinion. One of them summed it up nicely:
The 8th Cir. NEVER says there is no right to record LEO’s in public. We need to be very careful on this: EVERY federal appeals court in the country to have squarely addressed THAT issue, i.e., filming the police in public, has recognized that right.
You know, if poor dumb cops can read the opinion and get it right, is it too much to ask that a major media outlet do the same? Or at least run it past a lawyer (other than involved counsel)?
I emailed the KRCG News Director, Matt Johnson and asked him for a comment on this article, noting that PoliceOne had issued a correction on their article. He responded:
For your blog we have no comment. I will tell you that after a thorough review by our legal counsel we stand by the facts of the story.
The court opinions stand on their own.
*Akins v. Knight, et al., No. 16-3555 (8th Cir., July 25, 2017) (slip op.); and No. 2:15-CV-04096-NKL (W.D. Mo., Aug. 2, 2016).
†District Court order, at 35.
‡Akins, slip op. at 6 (internal citations omitted).