The New York Law Journal by Zoe Tillman - September 1, 2011
BOSTON, MA - Videotaping police in the course of their duties is "unambiguously" a free speech right protected under the First Amendment, the U.S. Court of Appeals for the First Circuit has held in a recent decision. The appeals court, in an opinion released Friday, rejected the argument that officers who arrested such videographers should be granted immunity against litigation. The underlying case involves a Massachusetts lawyer, Simon Glik, who sued the city of Boston and three local police officers alleging violations of his First and Fourth amendment rights after he was arrested for filming police activity with his cellphone. Mr. Glik was walking past Boston Common in 2007 when he spotted three officers making an arrest. The officers saw Mr. Glik filming the arrest using his cell phone and placed him under arrest, later charging him with violating the Massachusetts Wiretap Act, disturbing the peace and aiding in the escape of a prisoner. The case was eventually dropped, and Mr. Glik filed suit. The city of Boston and the police officers moved to dismiss the case, arguing they were entitled to immunity because there was no clear First Amendment right to videotape police using a cell phone. They also argued that they did not violate Mr. Glik's Fourth Amendment right because they had reason to believe he had violated the state's wiretap law. Judge William Young of the U.S. District Court for the District of Massachusetts denied the motion to dismiss, prompting an immediate appeal by the city of Boston and the officers. Circuit Judges Kermit Lipez, Jeffrey Howard and Juan Torruella heard oral arguments on June 8. The appellate judges found that Mr. Glik was well within the bounds of the First Amendment by filming government officials carrying out their duties in a public space. Private individuals, like members of the press, should be given wide berth to gather information on public officials, the panel wrote. "Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw," the circuit said in Glik v. Cunnifee, 10-1764. "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." On the Fourth Amendment claim, the panel agreed with Judge Young's finding that the police had no reason at the time to believe Mr. Glik was secretly recording them in violation of the state's wiretap law. Police admitted that they knew Mr. Glik was using his phone to capture the arrest when they confronted him, the panel noted. The police claimed they thought Mr. Glik was only taking pictures, as opposed to a video and audio recording, but the appeals court found that "a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is 'secret.'" Mr. Glik's attorney, David Milton of the Boston-based Law Offices of Howard Friedman, said Tuesday that the ruling was a "resounding victory for the First Amendment." "In strong language, the court affirmed that the right to videotape police officers and other public officials is protected by the First Amendment and is an essential tool of democracy," he said. A representative in Boston's Office of Corporation Counsel did not immediately return a request for comment. Zoe Tillman, a reporter for The National Law Journal, an affiliate publication, can be contacted at firstname.lastname@example.org.