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1st Circuit: A Clearly Established First Amendment Right to Film Officers In A Public Space (This Is A Big Deal) Part I

The First Circuit Court of Appeals opinion in the much anticipated Glik case came down Friday. Judge Kermit Lipez wrote this refreshingly tidy opinion for the unanimous panel. This opinion is a huge deal for the right to record police, and marks the first time a circuit opinion truly gets the law right–the other circuit opinions are either woefully thin on reasoning, not quite on point, or ambiguous.

Facts and Context

Simon Glik is a Massachusetts attorney.  Aside from being especially positioned to vindicate his rights, the incident is a typical copwatching encounter. In October 2007, Glik saw three Massachusetts officers arresting a suspect. When he heard a bystander complain about the officers’ use of force, Glik began recording the arrest from about 10 feet away using his cell phone. Officers told him to stop. He didn’t. An officer asked Glik if his video recording included audio. Glik said yes. Officers arrested him for violating the state wiretapping statute.

As readers probably know, the Massachusetts Supreme Court upheld the criminalization of secretly recording police in Commonwealth v. Hyde, 434 Mass. 594, 750 N.E.2d 963 (2001). Yet Glik recorded openly. Copwatchers know that in Massachusetts, Florida, and a number of other states, some officers will wrongly charge individuals with a wiretapping charge to stop them from recording police, and almost all cases plea or settle. People generally cannot afford the legal costs and criminal attorneys themselves generally don’t know this area of the law so well. But Glik went to the mat to vindicate the right. The prosecution dropped charges. Glik filed a complaint with internal affairs, but as usual the department neither investigated nor took disciplinary action.

The ACLU-MA assumed direct representation of Glik, and filed a civil suit. Glik won at trial, and Boston appealed on behalf of the officers (City’s brief, ACLU-MA brief). Two sets of amici then jumped on–the Center for Constitutional Rights (brief) with a host of Copwatch and police accountability groups, and a number of media groups (brief).

Legal Backdrop: The ACLU-MA Engagement, and the Growing Divide Between the First Circuit and The Massachusetts High Court

The Massachusetts ACLU affiliate has been fighting the criminalization of copwatching since the aforementioned Hyde opinion. In Hyde, the Massachusetts high court majority largely ignored arguments that a citizen-recorder has a First Amendment interest in recording police. 750 N.E.2d at 600-05 (majority); id. at 613-14 (dissent); see also Brief of the Amicus Curiae American Civil Liberties Union of Massachusetts in Support of Appellant, Commonwealth v. Hyde, 750 N.E.2d 963, 2000 WL 34610712, 36-38 (Mass. 2001), Brief and Record Appendix for the Defendant on Appeal from the Brockton District Court, Commonwealth v. Hyde, 750 N.E.2d 963, 2000 WL 34607853, 22-26 (Mass. 2001).

The First Circuit had been more amicable than the state court to the right to record police. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir 1999), a panel recognized a First Amendment interest in recording public officials engaged in public duties. The court further denied the arresting officers qualified immunity–no reasonable officer could believe that the arrest was constitutionally valid. The ACLU-MA pushed the law further in Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007), where a panel enjoined police from using the wiretapping law to interfere with publishing a video of police, even though that video was acquired in violation of the Massachusetts wiretapping law.

As the ACLU-MA took on Glik’s case, it seemed the First Circuit was moving in a rather different direction than the Massachusetts high court.

The Reasoning of the Court

1. There is a right to record police

The court vociferously supports the First Amendment right of an individual to record police while those officers carry out their duties in public.

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.

Opinion at 8. The court locates the right to record squarely in the right to gather information (one of the arguments that the right to record is ancillary to speech).

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.” 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.’” This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties. Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally.

Opinion at 9-10 (citations omitted). The court then goes on to affirm Iacobucci v. Boulter, 193 F.3d 14 (1st Cir 1999) and cites a host of other right to record cases, including Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) and  Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995)–both of which are key precedent for the right. The court affirms that the freedom of the press is an individual liberty. Opinion at 11-12.

Notably, the court goes out of its way to point out that recording police in a public space “does not interfere with officers’ performance of their duties,” and is “not reasonably subject to limitation.” Opinion at 14. The court also suggests that officers have to put up with being recorded in the same way that they have to put up with offensive speech (an argument I also make in my Note). Opinion at 14-15. This language may signal that this panel would find the Massachusetts law constitutionally invalid–perhaps facially overbroad. This court does not seem willing to recognize the alleged privacy interest of officers in public as important enough to overcome the intermediate scrutiny applied to a content-neutral restraint like the wiretapping law.

2. That right is clearly established

The court distinguishes the unpublished summary order Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009) and the current ambiguity in the Third Circuit cases, and affirms its own precedent to find that a reasonable officer should know that interfering with Glik’s recording would violate his First Amendment rights. That means Glik’s suit can go forward. Courts don’t allow officers to get sued for making reasonable mistakes, but the court said this was not a reasonable mistake. The officers should have known better.

3. The officers violated Glik’s Fourth Amendment rights as well

Right to record cases almost always involve the intersection between First and Fourth Amendment rights. When police stop the recorder from creating an expressive amateur documentary–that’s the First Amendment violation. [Edit, 12:25 PM]. Here, officers also seized Glik’s phone and seized Glik’s body. Here, these seizures violated the Fourth Amendment because no reasonable officer could think that Glik was violating the Massachusetts wiretapping law. Opinion at 17-19. No one could think that Glik was recording secretly.

(I would pose another argument, too.  If seizing a person or a recording device clearly violates the First Amendment, then the seizure is also a violation of the Fourth Amendment–an unlawful, unreasonable seizure. The court here did not reach out to that issue, but it didn’t have to.)

What This Means For ACLU v. Alvarez

ACLU v. Alvarez–a case I have discussed before–presents similar issues–Illinois and Massachusetts are the only two states in the nation that currently criminalize recording police through wiretapping statutes. A Seventh Circuit panel will hear oral arguments in ACLU v. Alvarez on September 13. But there is an important difference in enforcement. In Massachusetts, a recorder may not surreptitiously capture audio (even as part of a video recording of a public official in public); in Illinois, a recorder may not capture audio without consent (even as part of a video recording of a public official in public). There’s also a difference in the remedy sought and the procedural posture. Glik is a civil suit for damages; the ACLU-IL in Alvarez is attacking the statute directly–asking for a declaratory judgment that the statute cannot constitutionally criminalize recording police in public.

Even so, yesterday’s opinion has important implications for the Seventh Circuit case. Judge Conlon’s opinion can only stand if there is no First Amendment interest in recording police. Affirming Conlon’s opinion those grounds would not only directly conflict with the Eleventh Circuit opinion Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000), but now also with this First Circuit opinion.

The First Circuit may have even suggested an argument to it’s sister circuit–Judge Lipez’s opinion cites the Seventh Circuit’s opinion in Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969) for authority.

Why Didn’t The Court Strike Down The Statute?

Radley Balko asks this question on his blog, so I imagine some other folks are wondering the same thing. The legal issue here was not if the statute was valid. That’s a bigger question than what the court had in front of it. Court’s can’t reach out and rule on whatever they want–they can only rule on a case or controversy in front of the court. The court can’t act like a legislature and decide it doesn’t like a law. A court can only strike down a law when it has to.

There are a few ways to accomplish this–the claimant sort of has to corner the court into making the decision [Ed. Note: added at 12:25PM]. The typical way is at the criminal defense stage: a criminal defendant argues that he is not liable for the crime because the criminal statute violates the constitution. Because someone’s liberty is at stake, a court must decide if a law is unconstitutional or not. If the prosecution drops charges, though, as the prosecution did in Glik’s case, a court can’t reach out and decide the issue. The criminal case is over.

In ACLU v. Alvarez, the ACLU-IL is trying something different. They are looking for a “declaratory judgment.” Their position is, “Look, we’re going to record police, and we want to know if the law is unconstitutional before we rack up the felonies.” It takes a bit of wrangling to get a declaratory judgment. Courts don’t like to give them because they come close to violating the case or controversy requirement. But if judgment will avoid a very likely problem, then courts will step in. Judge Conlon tossed out the ACLU-IL suit because she said they didn’t have a First Amendment right to record police in public, and therefore didn’t have any harm or standing required to bring the declaratory judgment suit.

A civil rights suit comes after a criminal prosecution. The former defendant argues that authorities violated his or her civil rights, and that the defendant is entitled to money for that (more or less). But there’s no need for a court to decide a whole statute is unconstitutional–only whether the former defendant’s civil rights were violated.

Special Note On Boston’s Lead Attorney

Curiously, Lisa Skehill Maki, the author of the brief for the City of Boston, wrote her student note on how the Massachusetts law was wrong. Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981 (2009). This ironically makes her very qualified to defend that law. Additionally, her note briefly mentions the Glik case when it was still at the criminal stage. Id. at 1006.

Her brief is useful for practitioners. There are not many good briefs on this issue from municipalities–and some are plain baffling. Maki’s brief is very well done–she catches one case I overlooked, Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009). This brief is a good study for practitioners to see what a competent brief against a a clearly established right to record might look like.

Final Thoughts

  1. Still-no one has tackled the 800 lb. gorilla, Colten v. Kentucky, which holds that there is no right to observe an arrest, without more. Not even Liza Maki’s otherwise skillful brief for Boston cites Colten. I suppose people haven’t spotted it yet. I’ll blog about that opinion soon. I spend a lot of time on it in my own note.
  2. Can’t go wrong with a judge named Kermit. Apparently he’s a nice fellow.

[Edit: 9:51 AM August 27, 2011--fixed some minor typos and unclear language, and added a link.]

5 Comments

  • Rich Jones - August 27, 2011

    Fantastic news – now more people in MA can use our Cop Recorder software on their phones!

    Rich – OpenWatch.net

  • Dan - August 27, 2011

    So are you saying that Colten says that no First Amendment right to observe, ergo no First Amendment right to record?

    Interesting

    • BigM - August 27, 2011

      That’s the basic gist. In my forthcoming article, I argue that Colten is both distinguishable and outdated, coming down before an individual could broadcast [cheaply] to billions of people with QIK and an iPhone. But if I was representing a municipality, I’d say Colten would be my best case. I think heretofore the municipality lawyers have been too overworked and too unfamiliar with the case law to find Colten, and the case is fairly obscure even so. I’ll write up a more substantial post about the case after the hurricane passes, but I may be without power a while.

      Good advocacy is about anticipating the best arguments on the other side, and I think that’s this case. I’ve been leery about posting about it because I didn’t want to “give the goods away,” so to speak, but I think it’s inevitable that someone will figure it out eventually, so I may as well crowdsource my take and see if I’m crazy or not.

      • Dan - August 28, 2011

        That is an interesting take. Im not sure the principle would change based on new technology. In any event, I read the Boston brief after your article and thought it was actually better than Gliks brief, but fortunately the court looked past skillful lawyering and got to the heart of the issue.

  • BigM - August 27, 2011

    Hat Tips to Cato-at-Liberty and The Agitator.

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