The US Department of Justice has filed a brief in a Maryland court case defending citizens' rights to photograph and record police officers in the course of their duty. The DOJ, in fact, goes beyond what it had said in a previous case by arguing that citizens are protected by the First and Fourth Amendments. In fact, the DOJ argues that using "discretionary charges, such as disorderly conduct, loitering, disturbing the peace, and resisting arrest" to try to stop people from recording police actions "chills protected First Amendment speech."

The court cases involves an incident that occurred in 2011. Photo journalist Mannie Garcia was taking photographs of police officers who were arresting two other men. The officers then arrested Garcia and seized the memory card from his camera — in the process putting Garcia in a choke hold and injuring him. The result was a disorderly conduct charge, for which he was acquitted, but before he went to trial Garcia temporarily lost his White House press credentials due to the charges. After his acquittal, Garcia went on to seek damages for the incident. The court case the DOJ is responding to is this latest one, where it is arguing that it should not be tossed out.

Courts have viewed and should view discretionary charges brought against individuals engaged in protected speech with considerable skepticism.

In its brief, the government also said that seizing Garcia's memory card constituted not just a violation of his Fourth Amendement rights, but also his First Amendment rights. The government argues that "action intended to prevent the dissemination of information critical of public officials, including police officers" is an attack on First Amendment rights. The DOJ was clear that Garcia's status as a journalist had no bearing on its arguments, but that instead they applied to all citizens.