No First Amendment Right to Film Others’ Party in Public Park, Even to Try to Document Alleged Ordinance Violations

From Monday’s decision by Judge Edward Chen in Barroca v. Hayward Area Recreation & Parks Dist. (N.D. Cal.):

Plaintiff also asserts a First Amendment claim based on an incident in which a park ranger told him to stop filming a family barbecue held by Marco Hernandez, a retired HARD employee.

The Ninth Circuit has “recognized that there is a First Amendment right to film matters of public interest.” A well-established application of this right is recording the official conduct of police and other public officials in public spaces.

Here, Plaintiff alleges that he noticed Mr. Hernandez, a retired HARD employee who lives in the caretaker’s house in the park, hosting a family and friends barbecue in a public area next to the caretaker’s house. Plaintiff alleges that Mr. Hernandez and his guests were violating numerous park ordinances, including having a fire, drinking and serving alcohol, and using a fenced-off yard for his guests. Plaintiff started filming from 150 yards away. Ten minutes later, Ranger Oliver arrived and ordered Plaintiff to stop filming. When Plaintiff refused to stop videotaping, Ranger Oliver called the Alameda County Sheriffs and told them there had been an altercation. Plaintiff does not allege that he was arrested.

Plaintiff fails to satisfy the first prong of First Amendment retaliation—that he was engaged in protected First Amendment conduct. While the First Amendment protects filming public officials in the exercise of their duties, Mr. Hernandez was not a public official and was not engaged in any public duty. As to the more general rule that the First Amendment protects filming matters of public interest, Plaintiff provides no authority that a family barbecue in a public park is a matter of public interest, whether or not Plaintiff suspects that barbecue violates park ordinances. The Court does not find that the barbecue, as alleged by Plaintiff, constitutes a matter of public interest….

Further, any such claim would be barred by qualified immunity since the right alleged is not “clearly established.” …

But see Ness v. City of Bloomington (8th Cir. 2021), which struck down an ordinance banning photographing children in park; the court concluded that the ordinance was content-based and didn’t pass strict scrutiny, but I take it that the stop-filming order was likewise likely content-based—I saw nothing in the opinion suggesting there was a general filming ban, and I assume that filming something other than people (e.g., interesting birds perched in a tree) wouldn’t have led to the order.

William Ernest Camy, Matthew W. Gross, and Porter Scott, and Jackson D. Morgus (Burke, Williams & Sorensen, LLP) represent defendants.