We’ve had a lot of stories this year about police arresting people for filming them. It’s become quite a trend. Even worse, a couple weeks ago, we wrote about a police officer in Massachusetts, Michael Sedergren, who is trying to get criminal wiretapping charges brought against a woman who filmed some police officers beating a guy. This officer claims that the woman violated Massachusetts anti-wiretapping law, a common claim from police in such situations.
Segederin may have been better off if he’d waited a couple weeks for an appeals court ruling that came out Friday, because that ruling found that arresting someone for filming the police is a clear violation of both the First Amendment and the Fourth Amendment of the Constitution. How the case got to this point is a bit complex, but basically, a guy named Simon Glik saw some police arresting someone in Boston, and thought they were using excessive force. He took out his camera phone and began recording. The police saw that and told him to stop taking pictures. He told them he was recording them, and that he’d seen them punch the guy they were arresting. One officer asked him if the phone recorded audio as well and Glik told him it did. At that point, they arrested him, saying that recording audio was a violation of Massachusetts wiretap laws.
Even more ridiculous, they then had him charged not just with that, but also with disturbing the peace and “aiding in the escape of a prisoner.” After realizing that last one didn’t even pass the guffaw test, Massachusetts officials dropped that charge. A Boston court then dumped the other charges and Glik was free. However, he wanted to take things further, as he thought his treatment was against the law. He first filed a complaint with Boston Police Internal Affairs who promptly set about totally ignoring it. After they refused to investigate, Glik sued the officers who arrested him and the City of Boston in federal court for violating both his First and Fourth Amendment rights. The police officers filed for qualified immunity, which is designed to protect them from frivolous charges from people they arrest.
The district court rejected the officers’ rights to qualified immunity, saying that their actions violated the First & Fourth Amendments. Before the rest of the case could go on, the officers appealed, and that brings us to Friday’s ruling, which, once again, unequivocally states that recording police in public is protected under the First Amendment, and that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights as well. The ruling (pdf) is a fantastic and quick read and makes the point pretty clearly. Best of all, it not only says that it was a clear violation, but that the officers were basically full of it in suggesting that this was even in question. The court more or less slams the officers for pretending they had a valid excuse to harass a guy who filmed them arresting someone.
The 4th Amendment bit may not be as widely applicable, since it mainly focuses on the Massachusetts wiretapping law. Here, the court notes that the law only covers audio recording in secret. But there is no indication that Glik did any of his filming in secret. It found the officers’ arguments that he could have been doing lots of things on his mobile phone completely uncompelling, stating that the “argument suffers from factual as well as legal flaws.”
The full ruling is embedded below, but a few choice quotes:
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….
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.
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. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was “secret” merely because the officer did not have actual knowledge of whether audio was being recorded.
While this case isn’t over yet, it’s still a huge victory for those arrested by police for filming them in action. It suggests such people can bring charges against the police for civil rights violations in taking away their First Amendment rights. A tremendous ruling all around.