Sunday, June 28, 2020

The Second Amendment Doesn't Protect Cell Phones

By Eugene Volokh - June 28, 2020 at 08:03AM

In last week's decision by Judge Kenneth D. Bell in Benzing v. N.C. (W.D.N.C.):

On January 27, 2014, Plaintiff Charles Benzing was sentenced to thirty-six months of supervised probation in Wake County Superior Court in North Carolina as a result of criminal contempt violations related to his conduct in connection with domestic disputes….

The Mecklenburg County probation office in Charlotte prohibits the use of cell phones in the office. At all relevant times, the probation office had signage posted stating, "Please turn off cell phones before entering. Thank you." Further, Benzing was instructed on several occasions by Defendants Lockridge, Sweatt and Treadway that video and audio recordings were prohibited at the probation office and that he would need to turn off his cell phone upon entering the office due to security and confidentiality reasons.

On July 29, 2015, Benzing was in the lobby of the probation office recording with his cell phone and was asked to stop recording. Benzing refused to stop recording and began yelling and screaming that he had the right to use his cell phone to record in the office. As a result, Benzing was taken into custody for failure to report in a reasonable manner and for the failure to turn off his cellphone as requested….

Plaintiff bases his claim under the Second Amendment on his contention that his cell phone is a weapon which he contends is an "arm" for purposes of the Second Amendment because he uses its recording capability to "defend" himself. The Supreme Court has defined the "arms" protected by the Second Amendment as "weapons of offence, or armour of defence" or "anything that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." District of Columbia v. Heller, 554 U.S. 570, 581 (2008). Heller defined the term "to keep arms" to mean "to have weapons" and "to bear arms" as to "carr[y] weapons." Id. at 582. Based on the Court's definition of "arms," the Plaintiff has failed to show that his right to use and keep his cell phone qualifies as an "arm" protected under the Second Amendment because even though a cell phone can be used to summon help or record a crime it is not a "weapon" of either offense or defense. Indeed, Plaintiff has not cited, nor has the Court found, any authority to support Plaintiff's argument that a cell phone can qualify as a weapon under the Second Amendment.

The plaintiff's First Amendment argument was more plausible, but he still lost, given the government's greater power to restrict First Amendment activities inside government buildings:

Plaintiff claims that the requirement by Defendant Lockridge to turn off his cell phone while attending his meetings in the probation office is a violation of his First Amendment right to free speech…. [But] courts have upheld restrictions on the use of cell phones in government buildings. See Hodge v. Bd. of Cty. Comm'rs, No. CIV.A. RWT-10-2396, 2010 WL 4068793 (D. Md. Oct. 15, 2010), aff'd, 414 F. App'x 567 (4th Cir. 2011) ("[t]his court takes notice that cell phones can be used to photograph and/or record closed or sensitive proceedings for unlawful purposes, and prohibition of cell phones in courts and public buildings is a common precaution…. there is no First Amendment 'right to communication" that guarantees a right to carry cellular phones in government buildings."); Sheets v. City of Punta Gorda, Fla., 415 F. Supp. 3d 1115 (M.D. Fla. 2019) (citizen failed to demonstrate that city ordinance, which precluded video and sound recording without consent in city hall and city hall annex, limited public forums, was unreasonable restriction on speech in violation of the First Amendment); Rouzan v. Dorta, No. EDCV 12-1361-BRO JPR, 2014 WL 1716094 (C.D. Cal. Mar. 12, 2014), report and recommendation adopted, No. EDCV 12-1361-BRO JPR, 2014 WL 1725783 (C.D. Cal. May 1, 2014) (holding that defendant did not have a First Amendment right to record officials in a courthouse walkway, noting the absence of a right to record more important judicial proceedings and distinguishing the restriction from a First Amendment right to record police officers carrying out their duties in a public place). Indeed, this Court restricts the possession and usage of cell phones in the courthouse.

Accordingly, the Court declines to find that Plaintiff had an absolute First Amendment right to carry and use a cell phone in the Mecklenburg County probation office. {The broader issue of the full scope of First Amendment's protection for the recording of the conduct of police and other officials in a public place is not before the Court and the Court need not and does not express any opinion on that issue.} The state's "viewpoint neutral" and generally applicable restriction on the use of cell phones in the probation office did not limit Plaintiff's right to speak and was "reasonable in light of the purpose served by the forum." Therefore, Defendants did not violate Plaintiff's First Amendment rights in enforcing the challenged restriction on cell phones.


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