With the help of Harvard Law School's Cyberlaw Clinic, the Citizen Media Law Project and a coalition of media and advocacy organizations submitted an amicus curiae brief last week to the United States Court of Appeals for the First Circuit in a case involving a lawyer who was arrested for using his cellphone camera to record on-duty police officers. Joined by a broad amicus coalition that included Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., the Online News Association, and the Reporters Committee for Freedom of the Press, CMLP urged the court to affirm the First Amendment right to gather news in public places.
The case, Glik v. Cunniffe, stems from an incident on the Boston Common in October 2007. Plaintiff Simon Glik witnessed police arresting a man in the park. Glik recorded the arrest using his phone's video camera and was arrested for violating the Commonwealth's Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which prohibits the "secret" interception of wire and oral communications. The charges were eventually dismissed, and Glik, represented by the ACLU of Massachusetts, sued the officers and the City of Boston. A lower court denied a motion to dismiss Glik's complaint, and the First Circuit is now considering the officers' appeal of that ruling.
Amici argued in the brief that the Wiretap Statute cannot be applied to criminalize recordings where the subjects of those recordings do not reasonably expect their communications to be private. Allowing the arrest of a citizen for recording public officers conducting public business in a public place would not further the purpose of the Statute -- protecting the privacy interests of Massachusetts citizens -- and would run afoul of the First Amendment which protects the right to record public events and gather news and information.
A big thank you to the Cyberlaw Clinic for authoring the brief and to the lawyers and staff at Prince Lobel Glovsky & Tye in Boston for their assistance in filing the brief. Clinical students Davis Doherty, David Kleban, Brandon Winston, and Elizabeth Winokur made significant contributions to the brief.
Here's the Berkman Center's official press release on the filing.