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This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., 977 F.3d 817, 831 (9th Cir. 2020). Indeed, “the proliferation of bystander videos has spurred action at all levels of government to address police misconduct and to protect civil rights.” Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017) (internal quotation omitted). In assessing this case, the Court should keep in mind the powerful role that video recording can play in protecting the public—especially communities of color—from abusive government conduct.



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