First Circuit Hears Argument on Right to Record in Public

[NOTE: The First Circuit has issued its opinion in the Glik case -- see the CMLP's coverage here.]

This morning, I attended a hearing of the U.S. Court of Appeals for the First Circuit in the case of Glik v. Cunniffe, which raises important questions regarding the existence of a constitutional right to record the activity of police officers in public areas and the scope of Massachusetts' wiretapping law.  On October 1, 2007, plaintiff Simon Glik was arrested under the Massachusetts wiretap act, Mass. Gen. Laws c. 272, § 99, as well as for aiding the escape of a prisoner and disturbing the peace, after he used his cell phone to create an audiovisual recording of three police officers arresting a suspect on Boston Common.

Glik stated that he did not attempt to conceal his use of the cell phone, and thus did not make a “secret” audio recording as prohibited by the wiretap act.  He also claimed that he in no way interfered with the arrest and that he had a First Amendment right to record the activity of the police officers.  The Commonwealth of Massachusetts dismissed the aiding escape charge, and the Boston Municipal Court dismissed the remaining charges.

Glik, with the assistance of the ACLU, then filed suit against the officers and the City of Boston, asserting claims under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act as well as a claim for malicious prosecution.  The civil rights claims are premised on violation of Glik’s Fourth Amendment right not to be placed under false arrest (alleging a lack of probable cause to believe that he was engaged in “secret” recording) and his First Amendment right to record police activity on public ground.  The police officers filed motions to dismiss on the basis of qualified immunity, which the U.S. District Court for the District of Massachusetts denied.  They appealed, leading to today’s argument.

Judges Lipez, Torruella and Howard presided over today’s hearing before a packed courtroom. The attorney for the police officers argued that there had been no violation of Glik’s Fourth Amendment rights, because the police were following a reasonable interpretation of the wiretap act stating a recording is secret if the persons recorded are not subjectively aware of the recording process. Under that interpretation, he argued, the police would have had probable cause to believe a violation had occurred because they themselves were not aware that Glik was recording them.  He then argued that even if that interpretation were incorrect, the appropriate standard of “secrecy” was not reasonably clear such that the officers should lose their qualified immunity.

Glik’s counsel responded on the Fourth Amendment issue by first questioning the factual assertion that the police were unaware they were being recorded, which he claimed was not apparent from the face of the complaint; to the contrary, he argued that the allegations of the complaint (in particular an allegation that the officers approached Glik and stated that he had “taken enough pictures”) suggested that the police were aware of the recording. Counsel suggested that this language was ambiguous as to whether the police meant motion pictures, but I personally find this argument lacks traction. If people mean -- “are you filming?” -- they would usually refer to the act of filming; filming is a continuous process while the question about “enough pictures” implies a quantity, which suggests still photography.

Glik’s more persuasive argument on the Fourth Amendment issue was that “secrecy” for the purposes for the wiretap act had been clearly defined by the courts as focusing on the objective visibility of the recording process. Under this view, Glik’s recording was clearly not secret because he filmed in Boston Common in broad daylight with his phone out in full view of everyone nearby. Glik’s interpretation of “secret” makes more sense to me, because the officers’ position gives rise to potential for absurdity.  For example, under the officers’ interpretation the press could not film a crowd in public without violating the wiretap act, unless they were to announce to everyone within earshot that they were being filmed.

With respect to Glik’s allegation of a violation of his First Amendment rights, the officers’ counsel argued that there was no need to reach the issue because, even if Glik had the right to record in public, it had not been clearly established at the time of his arrest.  As such, he argued the officers would still be entitled to qualified immunity. The officers did argue that there was no First Amendment right to record, or at least that Glik’s First Amendment rights had been limited by the wiretap act, which functioned as a “time, place or manner” restriction.  Glik’s counsel argued that it was absurd to read the officer’s use of the wiretap act as a content-neutral TPM restriction, because the police only arrested Glik after he announced that he had seen the officers punch the suspect.  He also argued that the First Amendment right had been clearly established by the First Circuit’s 1999 decision in Iacobucci v. Boulter (involving recording of public officials speaking in the hallway of a public building) and that the arrest was a clear violation of Glik’s First Amendment rights.

The panel appeared ready to engage with the constitutional issues, expressing concern that a constitutional right could never be clearly established if the courts did not address the existence of the right because of a lack of clarity. Judge Lipez indicated that he did not see how the Court could avoid the First Amendment issue, while Judge Torruella specifically asked counsel for the police officers about the consequences for the media of a ruling that there is no First Amendment right to record in public forums. Judge Torruella also asked if the Rodney King recording would be illegal under the Massachusetts wiretap act if it had been created in Massachusetts; counsel for the police officers stated that it would have been.

Given the facts at hand, Judge Torruella’s questions raise very strong concerns. Counsel for the police indicated that a member of the press should not be treated differently than Glik, were it the media recording an arrest on Boston Common. Hopefully, restricting freedom of the press in this manner will be too much for a court to swallow. Keeping an eye on the police, or any public official, is a critical function of the press; ruling that there is no First Amendment right to record these activities would wrap a chilling grip around journalism.

It is no more tolerable to limit the rights of the public to record the actions of their officials.  Recordings by citizen journalists, from the tape of the Rodney King beating to the present case, mobilize tremendous social response and often document truths that would never come to light if the public could only rely upon a comparatively smaller number of professional reporters.

Jeff Hermes, the Assistant Director of the Citizen Media Law Project, was also interviewed today by WBUR in Boston regarding the Glik case.  You can listen to the interview here.

(Timothy Lamoureux is a rising 2L at Harvard Law School and a CMLP blogger.  I will take the Ring to Mordor. Though... I do not know the way.


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