A Victory for Recording in Public!

My apologies to Justin Silverman for bumping the second half of his excellent blog post about the BART phone blackout with this breaking news -- I urge you to read Justin's posts as well. 

The CMLP is thrilled to report that in the case of Glik v. Cunniffe, which the CMLP has blogged previously and in which the CMLP attempted to file an amicus brief, the U.S. Court of Appeals for the First Circuit has issued a resounding and unanimous opinion in support of the First Amendment right to record the actions of police in public.

For those of you not familiar with Simon Glik's case, Glik was arrested on October 1, 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common.   In return for his efforts to record what he suspected might be police brutality -- in a pattern that is now all too familiar -- Glik was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace.

As tends to happen in cases like these, the charges didn't hold up, with the Commonwealth dismissing the aiding escape charge and the Boston Municipal Court dismissing the remaining charges.  But unlike most arrestees, Glik, with the assistance of the ACLU, fought back against this treatment.  He filed an internal affairs complaint with the Boston Police Department, but the BPD neither investigated the complaint nor initiated any disciplinary action.

Undeterred, in February 2010, Glik filed suit in federal court against the officers and the City of Boston under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act.  Glik alleged that the police officers violated his First Amendment right to record police activity in public and that  the officers violated his Fourth Amendment rights by arresting him without probable cause to believe a crime had occurred. 

Naturally, the police officers moved to dismiss on the basis of qualified immunity, but Judge Young was having none of that, denying the motion from the bench and ruling that "in the First Circuit . . . this First Amendment right publicly to record the activities of police officers on public business is established."  The police officers then appealed to the First Circuit, but they have now struck out on appeal as well, with the First Circuit ruling that "Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause." 

Pardon me while I bask in the warm glow of that sentence for a moment.  Let's see if we can find some more excellent quotations.

  • "[I]s 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."
  • "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"
  • "[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
  • "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.'"

I've got chills.  Let's hope that last quotation helps us find some more room for cameras in the federal courts.

The First Circuit relied on its earlier opinion in Iacobucci v. Boulter, as well as a plethora of decisions from other courts, in holding that the First Amendment right to record public officials in public spaces had been well established.  The Court also dismissed the suggestion that the discussion of the First Amendment right to record in Iacobucci was too cursory to clearly establish the right.  To the contrary, the Court stated that "[t]he terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area."

"Self-evident." They actually said "self-evident."

The Court also rejected any distinction of those cases based upon the fact that Glik was not a reporter, holding that "[t]he 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" and noting the importance of citizen journalists:

[C]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw.  The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper.  Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.

(Meanwhile, over in the state courts, the Supreme Judicial Court of Massachusetts is currently mulling over amendments to SJC Rule 1:19 -- Massachusetts' cameras in the courtroom rule -- that would expand the role of citizen journalists in the courts of the Commonwealth.  We're getting there, folks.)

On the Fourth Amendment side, the police officers fared no better with their argument that they had probable cause to arrest Glik under the wiretap law.  The argument before the First Circuit turned on the question of whether Glik's recording of audio could be considered "secret," as required by M.G.L. c. 272, § 99, when he was holding his cell phone out in full public view in broad daylight.  The police officers claimed that the audio recording was "secret" as far as they were concerned, because they had no subjective knowledge that Glik was recording audio as opposed to capturing still images or soundless video.

The First Circuit, analyzing Massachusetts state law, found that the question of secrecy turned on "notice, i.e., whether, based on objective indicators, such as the presence of a recording device in plain view, one can infer that the subject was aware that she might be recorded." (emphasis added)  That invocation of an objective standard for secrecy doomed the police officers' argument.  The Court noted that Glik's complaint alleged that he was recording openly and that the police were aware of his activity, and thus held that Glik's conduct "falls plainly outside the type of clandestine recording targeted by the wiretap statute." 

The Court also rejected the police officers' reliance on their claim that they were unaware Glik was recording audio specifically, because Glik's complaint alleged that the police were at least aware that the device could record audio:  "Simply put, a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is 'secret.'"  Accordingly, the Court stated:

The presence of probable cause was not even arguable here. ... For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was 'secret' merely because the officer did not have actual knowledge of whether audio was being recorded.

So, clearly established First Amendment right to record the police in public - check.  Clearly established Fourth Amendment right against being arrested for violating the wiretap act when you're openly recording in public - check.  Even though I'm sitting in Cambridge with the eye of Hurricane Irene staring right at me, I can't help but feel that a ray of sunlight has just pierced the clouds.

This isn't the end of Glik's case, of course.  The First Circuit's opinion is based on the facts as alleged on the face of Glik's complaint, and the case now goes back to the District Court where Glik will be required to prove those facts.  One can only assume that his audiovisual recording will help.  But an opinion this strong can only help to halt the epidemic of photographer and videographer arrests that has been sweeping the country.

(On a personal note, I was present at the hearing before the First Circuit, and want to say that I was very impressed by the attorneys for both sides.  In particular, Ian Prior, counsel for the City of Boston and a former colleague of mine from my law firm days, did an excellent job arguing a difficult case.)

Jeff Hermes is the Assistant Director of the Citizen Media Law Project and, at present, a very pleased citizen of the Commonwealth of Massachusetts.

(Photo courtesy Flickr user Princess Theater under a Creative Commons license.)


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