{"id":3318,"date":"2011-09-26T11:24:48","date_gmt":"2011-09-26T15:24:48","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3318"},"modified":"2016-11-16T20:38:52","modified_gmt":"2016-11-17T01:38:52","slug":"first-circuit-affirms-right-to-record-the-police","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/first-circuit-affirms-right-to-record-the-police\/","title":{"rendered":"First Circuit Affirms Right to Record the Police"},"content":{"rendered":"

\"\"<\/a>In a ruling that could play a significant role in solidifying the emerging consensus that citizens have a constitutional interest in monitoring the activities of police officers, the First Circuit recently recognized that a Massachusetts man\u2019s right to video and audio record police making an arrest \u00a0was \u201cclearly established\u201d under the First Amendment.<\/p>\n

The decision, Glik v. Cunniffe <\/em>(1st Cir. 2011)<\/a>, had its origins in a 2007 incident in the Boston Common. Simon Glik was walking in the park when he noticed a disturbance surrounding three police officers making an arrest. After another bystander protested the amount of force the police were using, Glik approached and started to record the scene on his cell phone, which captured both video and audio. After asking Glik if he was making an audio recording, the police arrested him for violating Massachusetts\u2019 Wiretapping Statute, which prohibits the \u201csecret use\u201d of recording devices by private individuals. Since Glik\u2019s actions were anything but covert, the wiretapping charges were dismissed; two other charges of \u201cdisturbing the peace\u201d and \u201caiding in the escape of a prisoner\u201d — both likewise unfounded — were dismissed as well.<\/p>\n

The case found its way to the First Circuit after Glik pursued a \u00a7 1983 civil action against the officers and the officers moved to dismiss on grounds of qualified immunity. In affirming the district court and denying the officers\u2019 claims, the court had occasion to emphasize the extent to which Glik\u2019s actions were firmly within his constitutional rights. Relying on the \u201ctwo-pronged\u201d analysis of qualified immunity claims it had enunciated in its 2009 decision in Maldonado \u00a0v. Fontanes, <\/em>the court found that (1) Glik had successfully alleged a violation of his constitutional rights, and (2) the right in question was a \u201cclearly established\u201d one.<\/p>\n

The court framed the First Amendment issue as a \u201cfairly narrow\u201d one: the \u201cright to videotape police carrying out their duties in public.\u201d Starting with the basic principle of Stanley v. Georgia <\/em>that \u201cthe \u00a0Constitution \u00a0protects \u00a0the \u00a0right \u00a0to receive information and ideas,\u201d the court went on to note two important reasons to reaffirm that the recording of public officials\u2014at least when they act in public\u2014lies well within the zone of the First Amendment\u2019s protected activities.<\/p>\n

First, the Glik <\/em>court noted that, given the First Amendment interest in preventing government from \u201climiting the stock of information from which members of the public may draw\u201d (First Nat\u2019l Bank v. Bellotti<\/em>), such supervision by members of the public can serve as a valuable check on the government\u2019s \u201cincentive to repress opposition.\u201d This is especially true in the case of police officers, who are granted a degree of discretion to restrict liberty which often goes unrestrained by the system\u2019s more formal mechanisms of review.<\/p>\n

Second, the court relied on the commonsense notion that technological change has decentralized and democratized press freedoms: \u201cThe First Amendment right to gather news is, as the [Supreme] Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.\u201d Reaching back to the landmark language of Branzburg v. Hayes, <\/em>the court explained that, for a private citizen as well as for a newspaper, there exists an undeniable right to gather information \u201cfrom any source within the law.\u201d This reasoning represents a salutary extension of the logic underlying such past Supreme Court cases as Richmond Newspapers v. Virginia <\/em>(1980), in which the Court recognized the special nature of the press and public\u2019s right of access to the \u201ccriminal process.\u201d<\/p>\n

The First Circuit in Glik<\/em> found that the right to record police officers publicly, and the First Amendment rationales underlying it, were well settled by precedent; the appellant police officers could only point to two arguably conflicting cases–one of which was unpublished and both of which were decided after Glik\u2019s arrest. \u00a0Without passing on the validity of the Massachusetts Wiretapping Statute, then, the First Circuit nonetheless found that a reasonable police officer should have known that he was infringing Glik\u2019s \u201cclearly established\u201d First and Fourth Amendment rights by interrupting his recording and arresting him. In limiting the scope of its holding to overt <\/em>and public recording — it praised the Boston Common as \u201cthe apotheosis of a public forum\u201d — the court left the door open to claims of reasonable \u201ctime, place, and manner\u201d restrictions in borderline cases.<\/p>\n

As several commentators have noted, the Glik <\/em>decision may have some significance in circumscribing government restrictions on recording not only in Massachusetts, but in Illinois as well. Currently, Massachusetts and Illinois are notable in defying the emerging nationwide consensus by employing wiretapping or \u201ceavesdropping\u201d laws to prosecute citizen recordings of police action. While the First Circuit did not overturn the Massachusetts statute — nor could it have on the narrow issues presented to it — the clarity of the ruling may help embolden future arrestees in Glik\u2019s situation and further deter police from more egregious violations. Future cases of covert<\/em>, or arguably covert, recording — such as the case arising from a student\u2019s filming of Boston University police action during a political protest in 2006 — would still be subject to prosecution, but Glik <\/em>at least enunciates a clear constitutional right against which any asserted government interest must be balanced.<\/p>\n

In Illinois, whose Eavesdropping Statute as currently written bans audio recording without the consent of all parties involved, Glik <\/em>has seemingly already had some effect. Only days after the Massachusetts ruling, an Illinois District Court reversed the conviction of a man who had been sentenced to 75 years in prison for five counts of eavesdropping violations in recording the police. Noting that the statute\u2019s application to such a case was a clear departure from the privacy-protecting goals of the legislation, the court also found that its application unconstitutionally \u201cimpedes the free flow of information concerning public officials and violates the First Amendment right to gather such information.\u201d As the Reporter\u2019s Committee for Freedom of the Press noted, the court also referred to Glik <\/em>as \u201cpersuasive authority.\u201d \u00a0The Seventh Circuit in Chicago also heard arguments this month in ACLU v. Alvarez<\/em>, in which the ACLU is seeking a declaratory judgment that the Illinois statute is categorically unconstitutional as applied to citizens\u2019 audio recording of the police. The appeal to the Seventh Circuit follows a District Court ruling, handed down by Judge Suzanne Conlon before Glik <\/em>\u00a0was announced, which perplexingly found a lack of any \u201cauthority that the First Amendment includes a right to audio record.\u201d ACLU v. Alvarez<\/em> (N.D. Ill 2011).<\/p>\n

In comments at the argument of ACLU v. Alvarez <\/em>before the Seventh Circuit, Judge Posner expressed his worries about the possible runaway consequences of weakening the Illinois statute; \u201cthere is such a thing as privacy,\u201d he noted. Though there is, of course, a real constitutional interest in protecting all citizens from eavesdropping, wiretapping, or surreptitious recording — whether by other private citizens or by the government — Posner\u2019s apparent concerns fail to appreciate the extent to which Illinois (and Massachusetts) have been outliers in using anti-eavesdropping laws as a weapon against public monitoring of the police. The overt use of recording equipment in a public place is a far cry from the kinds of intrusive media \u201csnooping\u201d on private property to which courts have denied First Amendment protections in the past. Making it clear that holding police officers accountable through observing and recording their actions is a core constitutional right — as the First Circuit did in Glik <\/em>and the Seventh Circuit has an opportunity to do in ACLU v. Alvarez <\/em>— can help to clarify distinction between the universal interest in privacy and local government\u2019s interest in shielding itself from scrutiny while acting in full public view. As Justice Burger \u2013 himself no staunch civil libertarian \u2013 once noted: \u201cIt is important that society\u2019s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing the people to observe it.\u201d (Richmond Newspapers v. Virginia<\/em>). <\/em>\u00a0Police treatment of citizens during and after arrests is as much a part of the \u201ccriminal process\u201d as is a trial; it is only appropriate to recognize that citizens have a right to monitor overt police activities as much as they have a right to monitor public criminal trials.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

In a ruling that could play a significant role in solidifying the emerging consensus that citizens have a constitutional interest […]<\/p>\n","protected":false},"author":36,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_post_was_ever_published":false},"categories":[3,48],"tags":[],"coauthors":[],"class_list":["post-3318","post","type-post","status-publish","format-standard","hentry","category-amicus","category-freedom-of-expression"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-Rw","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/3318","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/36"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=3318"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/3318\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=3318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=3318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=3318"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=3318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}