How Not to Advance the First Amendment

​Police in Allentown, Pennsylvania, have long drawn the scrutiny of civil libertarians over claims of excessive force and occasional brutality. Since 2015, the city has paid out more than $2 million in police misconduct claims.
 
Phil Rishel, a 25-year-old Allentown resident, is determined to drive home Allentown’s lack of training in the First Amendment for its police force. He has often filmed police to demonstrate the point that he has a constitutional right to do so. In one of his recent posts, in which Rishel filmed a police garage through widely spaced bars from a public sidewalk, an officer sternly told him that “filming is not a First Amendment right.”
Courts have long held the opposite – that a citizen’s right to film in public is a vital form of public oversight, as seen in the arrest of a citizen-journalist who dared to film a public hearing in Texas. (Here’s a good guide on your rights and suggestions on how to film the police from the ACLU.)
 
Rishel’s recent posts have blown up the internet in which he has an insulting interaction with a police officer in the garage. In that recent video, the officer loses his cool and drives his police car down the sidewalk toward Rishel, who gleefully films him. When the officer inadvertently bangs the side of his car against a sidewall, Rishel responds with profane insults about the officer’s intelligence.

​Rishel has beaten charges of “verbally abusing, harassing, and screaming obscenities on the public street.” Local courts have recognized that swearing and even flipping the middle finger amount to constitutionally protected speech. Now the Foundation for Individual Rights (FIRE) is backing Rishel in his First Amendment lawsuit to protect his right to film and criticize police activities.
 
As Rishel tells an officer in his video, “there is no purer form of protest than on a public sidewalk.”
 
Well put. But can the same be said for Rishel’s pointed insults? They almost certainly fall far short of the Supreme Court’s “fighting words” threshold for what would constitute an actionable offense.
 
One likely – and commendable – result of this incident will be enhanced First Amendment training for Allentown police. Still, we don’t feel like breaking out the champagne over this one. Yes, the U.S. Constitution protects Phil Rishel’s right to act like an insulting jerk who provokes police officers into overreacting. But provoking police officers in a very personal way – who are, after all, human – is not a good way to test the boundaries of the First Amendment.

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