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Wednesday, August 31, 2011

Video recording police: First Circuit says it's a First Amendment right

Victory for the right to take videos of the police:  On August 26, 2011, the U.S. Court of Appeals for the First Circuit, in Boston, held that people have a clear First Amendment right to make video recordings of police making arrests in public places. The court's opinion (in .pdf format) is here. The website Gizmodo has an account of the dispute here.

The caption of the case is Glik v. Cunniffe.  Glik is himself a lawyer. According to his complaint, he saw three Boston police officers arresting a young man in the middle of Boston Common -- as public a public place as you can find. Glik thought that the police punched the man and were using excessive force. So, standing about 10 feet away, he began making a video and audio recording of the event with his cellphone. The police reacted by putting him in cuffs, too, and then pressing various charges including an alleged violation of a Massachusetts wiretapping statute.  All the charges were dismissed, and Glik then sued Cunniffe and the other arresting officers under federal civil rights law. The Court held that Glik was exercising his clearly established First Amendment rights in making the recording and that the arrest violated the Fourth Amendment.  On the basis of a number of Supreme Court decisions, the First Circuit found that the right to gather information by otherwise lawful means is  a clearly established the First Amendment right. The First Circuit itself and other federal courts had recognized this right in earlier cases involving the recording of public officials performing (or maybe misperforming) their duties in public. The First Circuit said:

"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. Cf. Gentile v. State Bar of Nev., 501 U.S. 1030, 1035-36 (1991) (observing that "[t]he public has an interest in [the] responsible exercise" of the discretion granted police and prosecutors). Ensuring the public's right to gather information about their officials not only aids in the uncovering of abuses, see id. at 1034-35 (recognizing a core First Amendment interest in "the dissemination of information relating to alleged governmental misconduct"), but also may have a salutary effect on the functioning of government more generally, see Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8 (1986) (noting that "many governmental processes operate best under public scrutiny")."


There are several other important points and wrinkles in the opinion. Some probably will interest only lawyers, but these, I think, should be important to everyone:  First, the court said that it did not matter that Glik was a private citizen and not a professional journalist. He still had this First Amendment right. In this connection, the court recognized that modern electronic devices can allow anyone to decide, even on the spur of the moment, to become a citizen-reporter on a blog or some other way.  (The court didn't specifically mention YouTube, but no doubt it was the sort of thing that they had in mind.) Second, the court made no distinction between audio and video recording (Glik had done both) but seemed to give equal First Amendment protection to each. The court also did note that the officers, on the facts alleged, could not have reasonably believed that Glik was violating the state wiretapping law, because it prohibited only "secret" recordings, and Glik was recording in plain view of the officers. That's why they arrested him.

In the routinely cautious way that courts almost always act, the First Circuit said that on other facts -- maybe when recording the police actually interfered with their work in some way beyond the mere fact of the recording itself -- the outcome might be different.

Police vs. photographers (still more)

A report in the Long Beach Post shows that the police there have photographers directly in their sights. If I read this correctly - and I think I do - then Long Beach police are instructed that it is now within their power to detain any photographer that they catch taking pictures in a public place, when the individual officer thinks that the pictures lack an "apparent esthetic value."

The mind boggles. Along with all their other weighty responsibilities, the Long Beach police now must serve as art critics? What training will they receive to perform this new function?  A semester-long course on the history of photography and its place in art history in general? And so that photographers have fair notice -- in order to avoid getting pinched for what the police think is bad art -- will the police then publish lists of what is acceptable and what is not?  Will representational photography in the romantic tradition be allowed? But anything edgier or more abstract prohibited?  So that anyone trying that kind of photography -- never mind the long list of celebrated photographers who have specialized in it over the years -- should expect an arrest? I expect legal challenges, sooner rather than later.

Police Chief Jim McDonnell was apparently trying to be helpful with this clarification, that photographers may be detained when they are observed "not engaging in 'regular tourist behavior.'" So it seems that Long Beach resident Sander Wolff, the individual subject of the article, got out of line -- his conduct diverged from "regular tourist behavior" -- when he took pictures of a refinery. The article shows one of Mr. Wolff's photos that got him in trouble. It's the kind of photograph of an industrial scene that amateur and professional photographers have been taking for over a century. It would be easy to find similar photographs at any major art gallery. Maybe a "regular tourist" would give the scene a pass, but so far as I know, this kind of photography never before has been treated as criminally suspicious. Not in the United States of America at any rate, the home of the free.