This is a well-known story to DMLP readers, but it bears repeating today. On October 1, 2007, a lawyer named Simon Glik saw members of the Boston Police arresting a suspect on the Boston Common in a way that he thought was excessive, and began recording the police from several feet away. The police didn't notice him at first, but eventually approached him and asked him if his phone was recording audio along with the video. When he informed them that it was, he was arrested and charged for aiding the escape of a prisoner, disturbing the peace, and unlawful recording under the Massachusetts wiretap act.
The prosecution dropped the aiding escape charge, and by late January the Boston Municipal Court had dismissed the two other charges as well. Glik then sued the officers involved for deprivation of his First Amendment rights under 42 U.S.C. § 1983, based on his right to record the police exercising their duties in public. The case went up to the United States Court of Appeals for the First Circuit, which issued what is still the best opinion in favor of these constitutional arguments, Glik v. Cunniffe. After Glik, and after Boston ended up paying $170,000 to Glik and his attorneys, the Seventh Circuit decided a case along similar lines in ACLU v. Alvarez, and the Civil Rights Division of the Department of Justice articulated this constitutional right in the clearest voice yet, when they intervened in Sharp v. Baltimore Police Department. I wrote about these developments a few weeks ago in the NYT Room for Debate blog, noting this trend as a preferable alternative to unregulated use of cameras by the police.
So it saddened me to learn that the Boston Police were once again involved in an incident of photographer harassment this August. To the BPD's credit, they didn't charge the videographer this time, and anyone watching the video can easily see how this particular encounter flared up – the BPD sergeant and videographer begin by talking past each other about whether the officers there were plainclothes police or working undercover, and that initial confusion lead to both sides getting agitated, puffing out their chests and acting belligerent. While I am sadly unsurprised to see this, I don't excuse the police for this behavior; I think it right to hold the police to a higher standard in such an encounter out of respect of the rights of the public. But I can understand how it happened, and I am glad that the BPD let him go on his way after the encounter.
But all credit I gave to the BPD goes away after what happened next. Taylor Hardy, a collaborator with the website Photography Is Not A Crime, contacted the Boston Police Department's Bureau of Public Information to ask some questions about this encounter, and was connected with Angelene Richardson, a spokeswoman with the BPD (who apparently speaks on BPD matters with some frequency, e.g., commenting on Red Sox fan behavior after the World Series, the Boston Marathon bombing, and a recent home invasion in Dorchester). The conversation was very short: Richardson was not aware of the encounter and directed Hardy to email the main BPD email address. When Richardson learned that Hardy had recorded the conversation, however, she filed an application for a criminal indictment against Hardy under the Massachusetts wiretapping law – the very same law that Simon Glik was charged under, and against which Glik helped establish the constitutional right to record public police activity.
This alone is outrageous, but what happened next is absolutely abhorrent. Carlos Miller, founder of Photography Is Not A Crime, wrote about Hardy's charges and explained why they were wrongful as a matter of law and policy. He asked his readers to contact Richardson and ask her to drop the charges and listed her work email and the main office line of the Bureau of Public Information. The next day, Miller received word from a BPD detective that they were considering filing charges against him for witness intimidation. The detective even suggested that the police might do the same against anyone who contacts Richardson or the Bureau of Public Information though these channels. Late last week Miller received the application for criminal complaint, with the same date for a show cause hearing as Hardy: tomorrow morning in Roxbury District Court. (The DMLP worked with both Miller and Taylor to retain counsel with Zalkind Duncan & Bernstein LLP for tomorrow's hearing.)
One could be tempted, in the effort to craft a tidy narrative, to compare what happened in the police encounter with the videographer that started all of this to what happened afterward with the police and Photography Is Not A Crime. In both cases, something that would have been a normal, everyday encounter if done by a member of the institutional press – recording an arrest or contacting the Bureau of Public Information for information about an arrest – is transformed into something viewed (incorrectly) as foreign, and therefore, in the eyes of the police, dangerous, which leads the police to act unreasonably and unlawfully.
But I think such an analogy understates how offensive this prosecution is. The reasons why we afford the police a degree of deference in the field – ensuring officer safety and avoiding interference with lawful police activity – are completely absent when a journalist contacts the police's public liaison on a phone line dedicated to contact from the public. While I do not doubt someone at the BPD would have stopped these charges from being brought if the defendants were writers at the Boston Globe or Herald or even the Dig, there's something more fundamentally troubling about this case and what it shows about the police's relationship with the public. There is no reason to bring the wiretap charge here other than to intimidate those contacting the police from asking questions they'd rather not answer. There is no reason to bring the witness intimidation charge here other than to send a clear message that the police do not want you contacting them and urging them not to go forward with a criminal case that is patently against the public interest. The thought that members of the public cannot rally citizens to contact the police and urge restraint, or that the police can bring felony charges against a member of the public for disclosing the contents of a conversation with the police's own public liaison is so constitutionally repugnant that it ceases to feel like the product of a democracy.
It is therefore quite refreshing to see legacy media outlets, like the Newspaper Guild, recognize the threat this behavior poses to all journalists, and come out strongly against these charges. Other media in Boston – citizen, professional, and everyone in between – would be wise to follow what comes out of tomorrow's hearing as well.
Update (November 14th): Carlos Miller reports that the hearing scheduled for this morning has been postponed to next Friday, November 22nd.
Update (November 15th): The Boston Police have withdrawn the charges, on the condition that Carlos Miller ask his readers to stop mass-calling the Boston Police Department, that Miller and Hardy announce when they are recording in the future, and that Hardy delete the original recording.
Andy Sellars is a Staff Attorney at the Digital Media Law Project and the Corydon B. Dunham First Amendment Fellow at the Berkman Center for Internet & Society.