Simon Glik

BOSTON — The 1st Circuit U.S. Court of Appeals just upheld the right to record public servants. All three District 1 Judges at the Court of Appeals ruled in favor of Simon Glik, an attorney who saw Boston area law enforcers make an overly forceful arrest on  October 1, 2007 at Boston Common. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” To document the excessive force being used, Glik began recording video footage of the arrest on his cell phone roughly ten feet away. After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.”

This resulted in the law enforcers turning their attention towards Glik and arresting him for wiretapping, aiding the escape of a prisoner and disturbing the peace. The police also confiscated Glik’s cell phone and a computer flash drive. After all of these bogus charges were eventually dismissed, the American Civil Liberties Union of Massachusetts filed a suit on Glik’s behalf, claiming police violated his First Amendment rights. According to the ACLU’s Sarah Wuncsh:

Police officers still seem to think that if they haven’t given their permission, that people don’t have the right to record them, and that simply is not true

Judge Kermit Lipez

Yesterday, the court agreed. From the decision representing the three judge panel and written by judge Kermit Lipez:

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.”…

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.”

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; rather, the public’s right of access to information is coextensive with that of the press…

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.”

TALLEY’S TAKE

This much needed and clearly worded ruling comes as a big surprise to me. My experience with judges has been that they deny rights instead of protecting them. I’m very interested in this ruling because I’m a videographer who records cops at every opportunity, and the first district court’s ruling covers New Hampshire, where I live, in addition to Maine, Rhode Island and Massachusetts.

Massachusetts is where the Glik incident took place as well as where Pete Eyre and Ademo Mueller were put on trial, also for wiretapping. Despite a prosecutor and law enforcers hungry for a conviction, a sensible jury found Pete and Ademo not guilty. If the Glik ruling had happened before their wiretapping trial, I’d like to think that the case would have been dropped by the prosecution or dismissed by the judge. It’s my hope that Beau Davis’s wiretapping charges will be dropped as a result od this decision. Beau, like Pete & Ademo, is being charged with wiretapping in Greenfield, MA but it involves a separate incident that is documented here.

I’ll conclude with more key quotes from the 24 page ruling (PDF):

[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.

Agreed.

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.’

This bodes well for  Free Speech Friday activity in Keene Central Square and elsewhere.

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.

“Readily be disseminated” sounds like the livestreaming that Judge Arnold prohibited me from during the recent trial of Ian Freeman.

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.

Did independent media like Talley.TV just get a shout out?

I discussed the ruling at the beginning of last night’s Free Talk Live with Mark Edge and attorney Seth Hipple who called in to the show. Seth has firsthand experience defending friends of mine from bogus wiretapping charges in New Hampshire. Several are still pending so hopefully this ruling will help end these prosecutions and deny law enforcers a means to harass the people trying to hold them accountable.

ELSEWHERE: Cato Institute | RightToRecord.org | Radley Balko | Citizen Media Law Project