Filming police in public is protected by the First Amendment

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.

“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.”

Indeed, most Americans’ ability to effortlessly capture and distribute digital images, including in increasing numbers the activities of on-duty police officers without their consent, has spawned an increase in the number of arrests for violation of local and state wiretapping and eavesdropping laws and other offenses, such as disturbing the peace, media advocates say.

In late July, for example, the Suffolk County police on Long Island, New York, arrested freelance photojournalist Phil Datz and charged him with obstruction of governmental administration after he filmed officers on the side of the road arresting suspects who had allegedly led officers on a police chase in Bohemia. The department later dropped the charges.

And on Memorial Day, Miami Beach police allegedly confiscated video-recording equipment from at least one member of the public and a TV photojournalist after both witnessed officers fatally shoot a suspect on a public street.