The Agitator
August 28, 2011

This is great. (PDF) Here’s what happened:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer1 then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

The charges were dropped. But Glik sued for violations of his civil rights. The First Circuit ruled today that the officers are not protected by qualified immunity. From the ruling:

The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”…

The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”

The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press….

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

A couple things, here. First, it’s a pleasant surprise to see a ruling this clear and forceful in a civil rights/qualified immunity ruling, as opposed to a challenge to a criminal conviction. The opinion not only states that there’s a First Amendment right to record cops, but that said right is firmly established, and that the cops should have known that it’s firmly established. That’s about as complete a repudiation of Glik’s arrest as he could have hoped for.

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Second, while I’ve only had time to quickly read the opinion online, I do find some possible cause for concern. From what I can tell, the opinion doesn’t strike down the wiretapping law, or even its application in the context of recording cops, so much as find that Glik wasn’t in violation of the law.  The opinion’s discussion of Glik’s Fourth Amendment rights, for example, spends a lot of time pointing out that Glik was clearly recording the cops openly, while the Massachusetts law only bars the surreptitious recording of cops. It would have been nice for the court to come right out and say either way whether the Massachusetts law itself passes First Amendment muster. But it didn’t, I guess because it didn’t need to. The opinion says Glik clearly wasn’t violating the statute, which means his arrest was a clear violation of his rights. If he had been recording secretly, and were arrested for that, I’d imagine the cops probably would have been granted immunity. Though even then, unless Glik was challenging an actual conviction as well, the court still wouldn’t necessarily need to uphold or strike down the law itself.

The strong language in the portion of the ruling pertaining to the First Amendment claim suggests that the court might strike down the law if given the opportunity. But it’s at least a tiny bit worrisome that the opinion doesn’t go to the trouble of coming right out and saying as much in the next section. A more thorough repudiation of the law would have been preferable for a couple reasons. First and foremost because I think the First Amendment protects the right to surreptitiously record on-duty cops. If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. Second, if the Massachusetts law is upheld, it’s going to create disputes about what constitutes plain sight, what is surreptitious, and whether a jury should believe the cop’s or the citizen’s account of where the camera was held while it was recording.

Not to be a complete downer on what is really a pretty great decision, but the other thing to keep in mind is that the current Supreme Court lineup is awfully fond of qualified immunity. It’s far from clear that they’d uphold this ruling. I do imagine that they will address the issue fairly soon. It will be interesting to see if that comes in the form of a challenge to an actual conviction, or in a civil rights claim for wrongful arrest.

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