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No First Amendment right to record government investigations, Sixth Circuit rules

Cincinnati police officers failed to persuade a three-judge panel that free speech rights allow them to record interviews about use-of-force incidents conducted by a city agency.

CINCINNATI (CN) — Although transcripts of police interviews with the Cincinnati Citizen Complaint Authority are made available upon request, officers who are the subjects of those interviews cannot record them on phones or other devices, the Sixth Circuit ruled Monday.

The CCA is a department used by the city to investigate use-of-force incidents. While officers and their union reps are allowed to take notes during interviews, there is a strict prohibition on the use of any recording device.

Dan Hils, president of the Fraternal Order of Police Lodge 69, filed suit against the city of Cincinnati in 2021 alongside several other officers, claiming city officials edited portions of his interview to omit exculpatory information about a use-of-force complaint.

Hils argued the First Amendment granted him and other officers a right to record the interviews, but a federal judge disagreed and dismissed the suit in March 2022.

The dismissal came after the FOP and the city agreed to a settlement that required the CCA to record all portions of every interview it conducts with officers.

The case was argued on appeal before a Sixth Circuit panel in October and the swift decision to uphold the lower court's dismissal was published Monday, less than two weeks after the arguments.

Chief U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, wrote the panel's terse, 10-page opinion and concluded that "while there are many potential ways to think about this claim, none of them provides a cognizable basis for relief."

He started with the text of the First Amendment and reminded the officers that freedom of speech does not cover the recording of interviews, and that neither the police union nor the officers themselves operate as a "press group."

"We know of no American tradition, whether under federal of state law, by which the subjects of a governmental investigation have a right to record all interviews and other fact-gathering efforts in the course of pending investigations of their alleged misconduct," Sutton wrote.

He emphasized no other avenue of government investigation – including grand juries, FBI interviews, or jury deliberations – allow for the release of selected interviews or information prior to their conclusion, and that such an exception here would risk harming the integrity of the CCA's investigations.

Sutton cited several U.S. Supreme Court decisions, including Zemel v. Rusk and Pell v. Procunier, that "recognized the power of federal and state governments to close and open doors to sensitive information within their control."

"When all is said and done," he concluded, "the First Amendment right to gather information from the government usually extends as far as the government has opened its doors to the public and press."

The panel determined the city's policy satisfies rational-basis review as well, given it was put in place to protect the integrity of their investigations and protect all participants from unfair public scrutiny or criticism.

Hils and the other officers argued a homeowner's right to record interviews conducted by police during the execution of a search warrant supported their position, but the panel swiftly rejected the proposition.

"Homeowners have a right to be in their home," Sutton said. "Other individuals do not. What a citizen may do under his roof does not tell us what he may do under the government's roof or indeed what he is permitted to do once there."

The officers' claim the city uses the policy to doctor interviews before their eventual release to the public fared no better with the panel.

"Just because the reports and files eventually may become public does not mean that the city lacks a legitimate interest in maintaining control over the interview during the investigation," Sutton said. "Other mechanisms exist for dealing with the risk of doctored interviews after a report becomes public, most notably the reality that the officer and Hils can say as much and Hils can use his notes to show as much."

The panel also included U.S. Circuit Judges Bernice Donald, an Obama appointee, and Eric Murphy, a Trump appointee.

Neither party immediately responded to requests for comment.

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