PENNSYLVANIA (WTAJ) — As people across Pennsylvania and the United States take to the streets and interact with law enforcement, including Immigration and Customs Enforcement (ICE), it is important to remember what you can and can’t do.

In Pennsylvania, over the past decade, there have been multiple lawsuits that have determined the fate of officer and citizen interactions. The ACLU has sued law enforcement agencies across the Commonwealth, including the Pennsylvania State Police (PSP), focused on citations for swearing and using the middle finger in an expressive manner.

Can you swear at or flip off an officer in Pennsylvania?

Short answer: Yes, you can swear at and/or flip off an officer or trooper in the Commonwealth. In 2011, the ACLU and PSP reached a settlement surrounding the issue after a woman was given a citation for calling someone a profanity, someone who wasn’t even a police officer.

The Pennsylvania Supreme Court emphasized that profanity, including foul words and language, along with gestures, is protected speech. Furthermore, the First Amendment of the U.S. Constitution protects freedom of speech even when it might be considered offensive or immoral.

While this doesn’t mean that you can say or do just anything, generally, challenging police action is considered protected under the First Amendment. Speech alone should not lead to an arrest or criminal charges.

However, the issue remains convoluted because while using profanity at or against an officer is not technically in violation of any existing law, it can still lead to charges being filed. For example, while dropping a swear word directed at a police officer is protected under the First Amendment, an officer could argue that the person was attempting to disturb the peace or engaging in disorderly conduct.

A person can be found guilty of disorderly conduct if they are found “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk.” Furthermore, disorderly conduct can be defined as:

Engaging in fighting or threatening or violent or tumultuous behavior

Making unreasonable noise

Using obscene language or making an obscene gesture

Creating a hazardous or physically offensive condition by any act that serves no legitimate purpose

It is important to note that Freedom of Speech does not protect threatening behaviors. Making threats, even unfounded, could be grounds for an arrest or detainment. So, while yes, you can swear at a police officer, trooper or ICE agent, it is important to remember that doing so can still land you with charges.

Can you film an officer in the Commonwealth?

When it comes to filming interactions with police officers, troopers and ICE agents, the two most important things to remember are public versus private property and not to get in the way of any encounter. Public properties include sidewalks, parks, roads or any place for community use, while private property includes areas such as homes, businesses or spaces owned by specific individuals.

The distinction between the two is important because while filming inside a business won’t always raise a flag or lead to your arrest, like the aforementioned use of profanity, it is something that could lead to you being detained. Private property owners set the rules, and if they don’t want videos or photos being taken, it is often a good idea to follow the rules.

More specifically, in Pennsylvania, it is illegal to record private conversations without the consent of all parties to the conversation. However, police officers doing their jobs do not fall within the “private conversations” category of recording in public or private spaces, as officers are often recording the interaction and conversation via body cameras.

In short, you do have the right to record audio and video of police officers when they are on duty and in public, such as during a traffic stop, interrogation or while they are making an arrest.

The ACLU recommends recording instead of live streaming for the privacy of those involved, staying a safe distance away, usually 10-15 feet, announcing that you are recording, filming horizontally, focusing on the officers, narrating what the officers are doing, trying to identify officers by their badge number and making sure any photos or videos are stored securely.

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Legally, officers are not allowed to ask or order you to stop recording or demand that any media captured be deleted. Police are also not allowed to search the contents of your cellphone without a warrant. The ACLU also recommends turning off any Face ID or fingerprint access to a device, as police cannot ask you to type in a password but may be able to use ID or fingerprints to access a cellphone without direct consent.

It is important to note that ultimately, if stopped by an officer, trooper or ICE agent for recording an interaction, the stop is considered voluntary unless told otherwise. One should ask the officer if they are free to go, and if the answer is anything outside of “no,” the person can leave the interaction at their free will.

Ultimately, across the board, whether it be swearing, using vulgar gestures or filming when it comes to police interactions, while the actions are protected, it is best to navigate each interaction with as much safety as possible.

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