An Ohio man who photographed an undercover cop walking through a hallway, then posted the photo online along with the officer’s name, was arrested last week.
And a Constitutional professor interviewed by the Toledo Blade believes his First Amendment rights were not violated.
But a Constitutional lawyer who actually stands up for the First Amendment in court said she is clueless.
According to longtime PINAC reader Marc Randazza, who is licensed to practice law in Nevada, California, Arizona, Massachusetts and Florida:
If you want to know something about Constitutional law, unless it is Volokh or Chemerinsky commenting, there is a 90% chance that the professor doesn’t know what the fuck they are talking about. Law professors tend to say what they wish the law was, not what it actually is. You learn what it actually is, rather than what you wish it was, by practicing law – not by reading inane law review articles about the law.
I think you have a First Amendment right photograph anybody in a public place and to publish truthful information about them.
Randazza stated the above after I had sent him the article seeking clarification on the law because I did not believe the incident fell under the First Amendment’s Time, Place and Manner Restrictions.
(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.
(B) Whoever violates this section is guilty of obstructing official business. Except as otherwise provided in this division, obstructing official business is a misdemeanor of the second degree. If a violation of this section creates a risk of physical harm to any person, obstructing official business is a felony of the fifth degree.
Sergeant Heffernan said anything a person does to hinder an investigation is subject to criminal charges; identification of an undercover officer might prevent the officer from working in that capacity.
“It’s a very dangerous job, and when people do deliberate things to try to make it more dangerous for the detectives, we take it seriously and we’re going to charge them,” Sergeant Heffernan said.
Phillips was arraigned Friday morning and was ordered held in lieu of $10,000 bond, which was posted, according to court records.
In an interview Friday night, Phillips said he was in Toledo Municipal Court on Thursday when he saw the officer walking through a hallway and decided to take the picture with his cell phone and post it online.
Phillips was arrested that night.
Phillips said he told police the photo, which he captioned, “[This officer] has an all-star snitch team,” was a joke.
It’s unclear if Phillips will contend that the posting is protected by the First Amendment, but such a contention is weak, said Rebecca Zietlow, a professor of constitutional law at the University of Toledo’s college of law.
“I think that even if there is a First Amendment right here, the government has a compelling interest to restrict the right,” Ms. Zietlow said. She added that fearing for the officer’s safety would be “pretty convincing to most courts.”
“Police officers, their jobs involve risking their lives, and why subject them to unnecessary risk like that?” Ms. Zietlow said. “It … seems pretty convincing to me [to restrict the right], and I’m a pretty strong believer in freedom of speech.”
The argument that police “risk their lives” is something we’ve heard countless times.
But the truth is, more innocent citizens are killed at the hands of police than the other way around.
In an unrelated case last October, Texas police arrested a man and a woman on a felony charge of retaliation for doing the same thing, so there is a need to clarify the law when it comes to posting photos of undercover cops online.