| Filming the police is protected by the 1st Amendment |
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** PJ Organizations contributed to an Amicus Brief, coordinated by the Center for Consitutional Rights, to support this case. Filming police in public is protected by the First Amendment by Kristen Rasmussen http://www.rcfp.org/newsitems/index.php?i=12000
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.
— Kristen
Rasmussen
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