MA - U.S. Court of Appeals says state law used to ban recording of police officers in public is unconstitutional.

In its ruling, which lets Simon Glik continue his lawsuit, the US Court of Appeals for the First Circuit in Boston said the way Glik was arrested and his phone seized under a state wiretapping law violated his First and Fourth Amendment rights:

The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. 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."

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."

The court noted that past decisions on police recording had involved fulltime reporters, but said the First Amendment does not apply just to professional news gatherers.

Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. 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.

Excerpts from the ruling:
• "Is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

• "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'"

• "A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

• "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."

The Court also rejected any distinction of those cases based upon the fact that Glik was not a reporter, holding that "the First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media" and noting the importance of citizen journalists:

Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. 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.


Court Ruling: http://www.ca1.uscourts.gov/pdf.opinions/10-1764P-01A.pdf

Links: http://www.citmedialaw.org/blog/2011/victory-recording-public

http://www.universalhub.com/2011/court-says-state-law-banning-recording-police-offi