First Amendment Right to Openly Record Police Officers in Public

Friday’s Glik v. Cunniffe (1st Cir.), held that the First Amendment protects a right to openly videorecord and audiorecord police officers in public:

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.” An important corollary to this interest in protecting the stock of public information is that “[t]here is an undoubted right to gather news ‘from any source by means within the law.'”

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 abusesbut 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”).

In line with these principles, [our circuit, other circuits, and various district courts] have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties….

It is of no significance that the present case, unlike Iacobucci and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. 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. Indeed, there are several cases involving private individuals among the decisions from other courts recognizing the First Amendment right to film.

Moreover, 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.

To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions. We have no occasion to explore those limitations here, however. On the facts alleged in the complaint, Glik’s exercise of his First Amendment rights fell well within the bounds of the Constitution’s protections. 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.” Moreover, … the complaint indicates that Glik “filmed [the officers] from a comfortable remove” and “neither spoke to nor molested them in any way” (except in directly responding to the officers when they addressed him). Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. 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.” The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

The decision is correct, I think: Just as the right to speak can be unconstitutionally burdened by restrictions on spending money to speak, or associating in order to speak, it can also be unconstitutionally burdened by restrictions on the gathering of information that is needed to credibly speak.

And the decision is also important. It’s just the latest in a line of circuit court cases, but it’s likely to get a lot of publicity, encourage police departments to respect the public’s rights to openly record police officers in public, and encourage lawyers to challenge violations of these rights. This is especially so because the court held that the right was clearly established, so that the officers won’t have qualified immunity. This means that if the plaintiff proves to the jury that his account of the facts is right, he can recover damages and attorney’s fees.

Note, though, that the decision is quite limited in its scope. It doesn’t, for instance, deal with whether state laws that bar surreptitious recordings — including of police officers in public — are constitutional (the argument would be that they are permissible “manner restrictions”). For an example of such a law being applied to punish a citizen, see this post, which discusses the 2001 Commonwealth v. Hyde decision in Massachusetts.

The First Circuit decision also doesn’t deal with whether the First Amendment right extends to the recording not just of government officials but of others (whether employees of a business or a nonprofit, or private citizens acting outside of any scope of employment). It doesn’t deal with whether state laws that bar surreptitious recordings of supposedly “private conversations” are constitutional. And it doesn’t discuss the permissible scope of restrictions on videotaping on government property (outside traditional public forums such as streets, sidewalks, and parks).

The logic of the opinion is broad enough to strengthen the hand of people who challenge some of these restrictions, and may ultimately lead to some of these restrictions being struck down. But which ones will indeed ultimately be struck down, and which will be upheld, is not clear.