In September 2012, the Appellate Court of New Jersey held that “the right to engage in news gathering for the purposes of creating a documentary concerning a matter of public interest is protected by the First Amendment and the New Jersey Constitution.” Ramos v. Flowers, No. A-4910-10T3 (N.J. Super. Ct. App. Div. September 21, 2012).

In that case, a documentary filmmaker (“Plaintiff”) was working on a project about gangs in Trenton, New Jersey.  On several occasions, a police officer (“Defendant”) made Plaintiff stop filming public encounters between the police and gang members. Id. at 17-19.  For example, on one occasion Plaintiff went to the Trenton Public Library to film a police investigation regarding a meeting between gang members on its premises. Id. When Defendant noticed he was filming, Defendant took his camera from him and put it in his police vehicle. Plaintiff claimed that Defendant threatened to lock him up if Defendant saw him again. 18.

Plaintiff filed a complaint against Defendant in New Jersey Superior Court, Law Division (“Lower Court”). Plaintiff alleged in his complaint that Defendant interfered with his free speech rights under both the New Jersey (“State”)  and United States (“U.S.”) Constitution.  Id. at 19. In response to his complaint, Defendant filed a motion for summary judgment.

Summary judgment allows a court to determine the outcome of a case without proceeding to trial. Basically, it may be granted when it was clear to the court, based upon the pleadings (e.g. complaint and answer), that there is no issue of material fact and judgment can be determined as a matter of law.  The Lower Court granted Defendant’s motion for summary judgment resulting in a dismissal of Plaintiff’s case before it could proceed to trial. Plaintiff then appealed to the Superior Court, Appellate Division (“Court”).

First, the Court addressed the First Amendment to the U.S. Constitution, which states in part,

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. l; Id. at 24.

The Court cited cases standing for the proposition that the First Amendment protects the media’s right to gather news.  Otherwise the freedom of press could be severely deprived of its essential purpose.  Id. at 24-25. For example, one purpose of the First Amendment is to protect the right to receive information. This includes the right to gather news from any source by means within the law.  Id. at 30.

Next, the Court addressed Plaintiff’s claim based on the New Jersey State Constitution, which states,

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.  No law shall be passed to restrain or abridge the liberty of speech or of the press.

N.J. Const. art. I, ¶ 6; Id. at 25.

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

N.J. Const. art. I, ¶ 18; Id.

Citing those provisions, the Court noted that the State Constitution provided broader protection for freedom of speech than the U.S. Constitution. Further, it observed that the freedom of press is strongly protected under the State Constitution. Id. at 25-26. It explained that a documentary about a subject of public interest, such as urban gangs, was a form of investigative journalism, and the process of preparing such a documentary was a form of news gathering. Thus, as a recognized form of journalism, a documentary is entitled to the strong protection afforded to the press.  Id.

In support of that proposition, the Court elaborated that the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within those principles.  Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal constitutional interest in protecting and promoting the free discussion of governmental affairs. Id. at 30. Accordingly, those activities are protected by the First Amendment of the United States Constitution and the New Jersey State Constitution. Id. at 26.

Accordingly, the Court reversed the Lower Court’s dismissal of Plaintiff’s complaint. However, it did
note that Plaintiff’s activity was subject to reasonable place, time and manner restrictions, as long as the restrictions were: content neutral; narrowly tailored to serve a significant governmental interest; and left open ample alternative channels for communication of the information. Id. at 32.

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