Federal judge rules First Amendment protects videotaping

— File photo by Ralph Stewart

One day after Tisbury police arrested a young man for videotaping police, the United States Circuit Court of Appeals, in a ruling issued August 26, reaffirmed an earlier court ruling, which said a person cannot legally be arrested for videotaping a police officer on duty in a public place. And, the appeals court ruled, if you are arrested, you can sue the police.

In 2007, Boston police arrested Simon Glik for using his cell phone to record police officers arresting a young man on Boston Common. The charges against Mr. Glik, which included violation of the state’s wiretap law, were very soon judged baseless and dismissed. After his internal affairs complaint was ignored, he sued the police officers and the city of Boston for false arrest and violation of his civil rights. The United States District Court found in favor of Mr. Glik, but the defendants appealed to the United States Circuit Court of Appeals, a three-judge panel.

In a 24-page ruling on August 26, Judge Kermit Lipez wrote, “We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly established Fourth Amendment rights were violated by his arrest without probable cause.”

The First Amendment

The police had asked Mr. Glik if his cell phone recorded audio as well as video. He said yes, and they arrested him and confiscated his cell phone and computer flash drive. The state wiretap statute — Mass. Gen. Laws ch. 272, § 99(C)(1) — prohibits making an audio recording of another person without that person’s permission (video is not covered by the statute). The purpose of the law is to prevent someone from secretly recording a private conversation. Both parties must consent to a recording — the so-called “two-person rule.” The court pointed out that there was no probable cause to arrest Mr. Glik, because the recording was not secret — it was made openly and in plain view.

Judge Lipez wrote that Mr. Glik’s First Amendment rights were clearly violated: “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.'”

Judge Lipez quoted an earlier Supreme Court decision: “[F]reedom of expression has particular significance with respect to government because [i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.”

Citing precedents, Judge Lipez said, “[O]ther circuit opinions . . . have recognized a right to film government officials or matters of public interest in public space.”

The Fourth Amendment

The Fourth Amendment protects citizens from unreasonable searches and seizures and requires that police have a probable cause to make an arrest. Because the wiretap law prevents only secret recordings and Mr. Glik was openly videotaping the police, he is justified in suing the police for violation of this Constitutional right, the court ruled. The court rejected the officers’ contention that the audio recording was secret because they did not know that a cell phone could record audio. Judge Lipez wrote, “The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance.”

Qualified immunity

The defendants claimed that the police have limited immunity while doing their jobs, claiming, “longstanding principles of constitutional litigation entitle public officials to qualified immunity from personal liability arising out of actions taken in the exercise of discretionary functions.”

The defense argued: “[The laws] need to shield public officials from harassment, distraction, and liability when they perform their duties reasonably.”

However, the three-judge panel rejected the officers’ immunity in these circumstances and upheld a ruling of a lower court that Mr. Glick was entitled to bring a civil rights action against them.