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Aug 29 2011

Important First Amendment ruling

Recently there has been a spate of events where police have prevented ordinary people from recording them and even public meetings of congresspeople.

In a ruling on Friday, the First Circuit Court of Appeals has now said that such prohibitions violate the First Amendment.

Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. ยง 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. 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.

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. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is . . . well established that the Constitution protects the right to receive information and ideas.”). An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.’” Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972)).

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.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, “[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.’” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that “[t]he public has an interest in [the] responsible exercise” of the discretion granted police and prosecutors). Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in “the dissemination of information relating to alleged governmental misconduct”), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that “many governmental processes operate best under public scrutiny”).

In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. (All emphases mine)

This is an important blow against the repressive use of the state apparatus.

8 comments

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  1. 1
    Sam Wise Gingy

    I just got busted for “illegal filming” at a state fair. The cops were telling me I didn’t have the right to film someone without their permission, including them. Well now this case settles that question.

    I’m felling good.

  2. 2
    Richard Frost

    ‘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.”‘

    And yet Julian Assange remains under effective house arrest, fighting extradition to a putatively progressive country that will almost certainly hand him over to a U.S. government eager to punish him for “high-tech terrorism.”

    A lone decision by one federal Circuit Court – binding only in that Circuit – is only a glimmer of sunshine between some ominously dark clouds.

  3. 3
    Mano

    Richard,

    As I understand it, judges in other circuits will take this ruling seriously. Unless an appeals court in another circuit comes to a different conclusion and the matter goes up to the Supreme Court for final adjudication, this decision could have much wider application.

  4. 4
    Mano

    Sam,

    Next time you go filming, you should remember the name of this case and quote it if challenged.

  5. 5
    Richard Frost

    Mano – We’re both right. The decision of one circuit court is only treated as mandatory authority within that circuit. In the other circuits, it is regarded as persuasive authority. The degree of persuasion depends, inter alia, on the stature of the judges writing the decision and on the similarity of the facts in the case. For example, when Learned Hand (best name ever for a judge) sat on the 2nd Circuit, he was held in higher esteem than most contemporaneous Supreme Court Justices.

    In today’s highly politicized environment, I would expect notoriously liberal circuits like the 9th (San Francisco) to see this ruling as highly persuasive, while more reactionary courts like the 5th (New Orleans) or 11th (Atlanta, which struck down the individual mandate of “Obamacare”) will remain mysteriously unmoved.

    Even if the Supreme Court ultimately endorses the 1st Circuit’s ruling, the Roberts Court is infamous for deciding cases on the narrowest possible grounds, greatly limiting the scope of the ruling and providing minimal guidance in other, related areas. Don’t expect a ringing endorsement of First Amendment rights – unless there’s a corporation involved.

  6. 6
    henry

    If a cop wants to take a camera they can do so and return it later. The ability of the police to accomplish something simply by harassing is appalling.

    That said, I have researched this topic before. What I found was that if the person doing the recording has some sort of venue, like a blog or YouTube channel, where they regularly post this type of thing, then it (previously) was ruled as protected speech. That is to say, if the person recording had some sort of demonstrable political ‘soapbox’ then they could record anything the police did in public.

    When that was absent, the federal and state wiretapping laws would be in effect. Some states like Ohio, only require one person to be aware of a conversation being recorded. Other states require both parties to be aware.

    I hope that the First Circuit Court’s ruling settles this issue. In my opinion, the only was democracy works is if it is transparent. Videotaping the police is something that helps accomplish that end.

  7. 7
    P Smith

    If filming or photographing people without permission were not permitted, there could be a slew of lawsuits about TV cameras at sporting events and other public places taken without consent. Would those cases have stood up in court? No, and neither should the bitching by pigs who don’t want their actions observed or recorded.

    Pigs often intimidate people into allowing their rights to be violated – “Why would you need a lawyer if you’ve done nothing wrong?” The same could be asked of the pigs and video: Why would you object to being filmed in a public place if you don’t intend to commit crimes or violate people’s rights?

    It seems the pigs only want things recorded – or those recording to become public – when it shows them in a positive light. The number of incidents where pigs have abused civilians without just cause is uncountable.

    Pigs restrain the arms of a wheelchair-bound man, then ram him face first into a concrete sidewalk. Watch the blood streaming across the concrete at the end of the video:

    A quadraplegic is assaulted and abused at a pig sty (some call it a police station):

    A New York pig assaults a cyclist during Critical Mass, then arrests the cyclist falsely claiming the cyclist assaulted the pig (at 25 seconds in):

    Democracy Now! broadcast about pigs abusing citizens:

    To anyone who objects to my use of the word pig, don’t assume to know me. When I was younger, I worked as a licensed security guard in multiple cities in Canada (as well as wherever I’ve travelled) and saw first hand the behaviour of pigs when they felt immune from consequences (e.g. forcing prostitutes to have sex). I have no criminal record.

    Absolute power corrupts absolutely, and many of the pigs view themselves as immune, especially when you compare the slaps on the wrist they receive as punishment for their acts. Pigs should get stiffer sentences than civilians do because the pigs are supposed to know the law and uphold it. The should either lead by example or be made examples of.

    .

  8. 8
    Peter

    P Smith, I can’t let your use of the slur ‘pig’ pass uncontested. I agree with much of what you say, but calling all police officers pigs goes too far – it’s no different an offence of stereotyping than the racial profiling many precincts around my home have been accused of.

    That said, I’d like to add a case to your list of examples of police abuse-of-power: The recent conviction of 2 officers in New York City accused of raping an intoxicated citizen who had called 911 for assistance. The received mild punishment for a crime second only to murder.

    I agree with you completely that officers convicted of crimes should suffer penalties at least as severe as those they are sworn to protect. But I’m still not with you on the whole ‘pig’ thing.

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