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RCFP.org: 1st Circuit rules filming police in public protected by 1st amendment


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paging ACW


The right to film police in the performance of their public duties in a public space is a “basic, vital, and well-established liberty safeguarded by the First Amendment,” a federal appellate court held last week, marking a major victory in a time when arrests for such activities have been on the rise.

The U.S. Court of Appeals in Boston (1st Cir.) ruled on Friday that three Boston police officers are not immune from liability for arresting a man who, believing the officers were using excessive force to arrest a young man on the Boston Common, recorded the October 2007 scene on his cell phone. The officers arrested the spectator, Simon Glik, confiscated his cell phone and a computer flash drive and charged him with violation of the Massachusetts wiretap statute, which requires the consent of all parties to record a conversation. The state Supreme Court has interpreted the statute to criminalize only secret recordings made without such consent.

Because the officers admitted that Glik used his cell phone openly and in plain view to obtain the video and audio recording, the Boston Municipal Court dismissed the wiretap charge against him. Glik filed a civil rights action against the officers and the city for alleged violations of his First and Fourth Amendment rights.

The officers moved to dismiss the complaint, claiming they were entitled to qualified immunity on the charges because it is not well-settled that Glik had a constitutional right to record the officers.

The lower court denied the motion, stating that in the federal appellate court with jurisdiction over federal trial courts in Massachusetts, “this First Amendment right publicly to record the activities of police officers on public business is established.” (The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief in support of Glik, although the appellate court declined to consider the brief in evaluating the case.)

The appellate court affirmed the denial, allowing Glik to pursue his claims against the officers.

“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,” the court said. “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.’”

This right to gather and disseminate news is not one that belongs solely to the media, a particularly important principle in this modern era of the news industry, when “changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” the court said.

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Satan's Attorney, here.

Pointing out that the law doesn't say "It's illegal to record law enforcement officers without their permission". It says "it's illegal to record anybody without their permission".

Is recording anybody, without their permission, a Constitutional Right?

IMO, it would be consistent with lots of recent court rulings, where courts have ruled that police can basically do whatever they want to a suspect (or pretty much to anybody), without a warrant or probable cause of any kind, on the nebulous reasoning of "expectation of privacy". (Which, the courts appear to have concluded, only exists if a person never ever sets foot outside of his underground, tempest-shielded, bunker.)

IMO, there's certainly something wrong with the assertion that the cops have the right to spy on anybody they want, but that the citizens can't spy back.

OTOH, I also have to observe that many of those laws and rulings which have outrageously eroded people's privacy, I've objected to. So I have to wonder if it's wrong of me to approve of something that I might object to, if it were being applied to other people.

(I don't think that's the case, here. IMO, if you're out in public doing something, "in front of God and everybody", then you have given permission for "everybody" to see what you're doing. And, to me, a camera is simply an eyewitness that doesn't make nearly the mistakes that real eyewitnesses do. I support the right to record police in public, because I support the right to record everybody in public.)

But I do think it's something to discuss.

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