First Circuit Affirms the Right to Record the Police in Public

Imagine you are strolling through the Boston Common and you see three Boston police officers using force to arrest a young man on a park bench. Someone shouts, “You’re hurting him!” You think this looks like police brutality. Do you pause to watch? Do you perhaps take out your cell phone and begin recording the arrest from a safe distance? Even if you would rather walk on by, would you be at all surprised if other bystanders pulled out their cell phones to videotape the event?

This is exactly what attorney Simon Glik did on October 1, 2007. And as August’s decision from the First Circuit Court of Appeals affirmed, it is perfectly legal. When an officer asked Mr. Glik to stop taking pictures, Mr. Glik responded, “I am recording this. I saw you punch him.” The officers then handcuffed Mr. Glik and arrested him for illegal wiretapping (a felony), aiding the escape of a prisoner, and disturbing the peace. The charges were eventually dismissed.

Mr. Glik complained about his false arrest to the Boston Police Internal Affairs Division, but they showed no interest. So the ACLU and the Law Offices of Howard Friedman brought a civil lawsuit  in federal court in Boston on behalf of Mr. Glik, claiming that the officers violated his First Amendment right to freedom of speech and his Fourth Amendment right to freedom from arrest without probable cause. The lawsuit claims that the officers arrested Mr. Glik to intimidate him from showing the video he took, which may have recorded police brutality. The suit also claims that the officers arrested Mr. Glik to serve as a warning to others that if you openly record the police, you might be arrested.

The defendant police officers argued that Mr. Glik’s case should be dismissed because the law is unclear about whether or not people have a right to record police officers, and therefore the officers deserve to be immune from Mr. Glik’s lawsuit. The district court rejected this argument, so they appealed to the First Circuit. On August 26, 2011, the Court issued a unanimous opinion rejecting the officers’ interpretation of the Massachusetts wiretapping law and the First Amendment. The Court determined that the officers should have known that there was a clearly established right to record public officials, and therefore they are not immune from Mr. Glik’s civil lawsuit. 

The Court’s strong decision firmly upholds the people’s right to videotape the police and other public officials while they’re on the job. Although this is not the first time a court has addressed this issue, the First Circuit’s decision in Glik provides the strongest and most complete discussion of the constitutional principles that protect the right to record public officials.

Writing for the Court, Judge Kermit Lipez said that videotaping public officials “serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs.… This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties.” Quoting the Supreme Court, Judge Lipez wrote that the freedom to “challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

The Court recognized that with modern technology such as cell phones that record video, all people have the opportunity– and the right –to be civilian journalists who record public officials. The First Amendment right to gather news does not differentiate between a professional media crew and a casual blogger. As Judge Lipez wrote, “[c]hanges in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw… [M]any of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew.” Just imagine how our access to news would be hindered if neither individuals nor the press had a right to record officials during a public celebration, a fire, or an incident of police brutality. Imagine that you could be handcuffed and arrested if you tried to take a video of a newsworthy event in public. Thankfully, the Court’s ruling will help prevent such scenarios.

The ruling also discussed the Massachusetts wiretapping statute in determining that the officers did not have probable cause to arrest Mr. Glik. The wiretapping law forbids secret audio recordings. Because Mr. Glik filmed openly, with his cell phone in plain view, the Court found his recording was not “secret” and that a reasonable officer would have known Glik did not violate the law. Since the wiretapping law didn’t apply to Mr. Glik’s case, the Court did not discuss whether or not the wiretapping law is a good law.

This case has received wide-spread media attention. Articles have been published in the New York Times, the Boston Globe, and the Wall Street Journal, among others, and the case has been celebrated across the political spectrum. Liberals and tea-partiers alike are pleased with the precedent set by this case. It has obvious implications for “copwatch” groups and members of the media who routinely monitor the public activities of public officials. Thanks to Mr. Glik’s perseverance and this solid decision from the First Circuit, you, too, can use your cell phone to videotape in public, without fear of going to jail or getting charged with a felony if you happen to record a police officer.  

The Court’s opinion is legally binding only in states within the First Circuit (which comprises Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico). But the Court’s forceful reasoning will hopefully persuade other courts around the country to reach the same conclusion. In particular, this firm has its eye on a pending case in the Seventh Circuit in Illinois. With any luck, other courts will begin to recognize that videotaping public officials is, as Judge Lipez wrote, “a basic, vital, and well-established liberty safeguarded by the First Amendment.”

Read the Court’s opinion here.

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