I am quite a fan of watching so-called "First Amendment audit" videos on YouTube. These are videos of people, mostly in the United States, going around to public places with cameras to film whatever they want and see if their First Amendment right to do so is respected by security guards, the police, government officials and workers, and people in general.
Quite often the police will be called, and in most cases nothing particular will happen other than, mostly, the police asking questions and demanding to see ID (with some really commendable exceptions by more well-informed police officers), the amount of insistence varying a lot.
While it's quite rare, in the worst case scenarios the photographer will be detained and sometimes even arrested, even though he did absolutely nothing wrong. In some of these cases the person's Fourth Amendment right (ie. protection against unreasonable searches and seizures) will be infringed, with the police officers searching and going through the belongings of the photographer in order to find an ID, without permission nor legal support for doing so.
Some of these illegal detainments and arrests have been taken to the court, with the victim suing the police department for such unconstitutional behavior. In most cases (that were not settled out of court) the court has judged in favor of the photographer. In a few of the most obnoxious cases the police department has been sentenced to pay quite a hefty sum of money to the victim.
Note that I wrote "in most cases". What about the other cases where the court did not rule in favor of the photographer, and declared that the arrest was legal and justified?
There have been several such cases where the reasoning by the judge has been that the police did have reasonable suspicion to detain/arrest the suspect... because the photographer did not say to the police officers that he was engaging in a First Amendment protected activity, and instead chose to be silent or otherwise not tell what he was doing.
I find this kind of ruling absolutely baffling. And this isn't even like an interpretation of the judgement. In these cases this was stated directly and unambiguously as the reason for judging in favor of the police.
I can't understand this reasoning at all.
Does the First Amendment only apply if the person says out loud that he's using the rights granted by it? If the person doesn't say it out loud, the First Amendment doesn't apply? The police is free to infringe on people's First Amendment rights unless they tell them they are using those rights?
The rights granted by the Constitution are inalienable, ie. irrevocable. There's no statute in the Constitution that one has to claim these rights in order to have them, that they don't apply if the person doesn't say so.
It's not up to the citizen to educate police officers that he's engaging in a First Amendment protected activity. It's up to the police to know, understand and respect these rights. It doesn't matter how silent the citizen may be, that doesn't somehow nullify his rights.
I can't understand these judgments at all.
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