The 1st Circuit Federal Court of Appeals said that a lawyer who used his cell phone to record a video of police making a drug arrest was within his rights and that the seizure of his cell phone and his arrest by police violated his First and Fourth Amendment rights.
In answer to the question, “Is there a constitutionally protected right to videotape police carrying out their duties in public?” the Court gives a resounding “Yes!”
This is huge. It’s huge partly because it’s taking place in Boston, the cradle and birthplace of liberty, but also a city and a state which has at least a 75-year history of not having much respect for constitutional rights.
The court said,
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. 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.” …
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.”
It didn’t matter that he is not a professional journalist with press credentials:
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.
See the full Text of the Court’s decision in Simon Glik V. City of Boston.
The trial court threw the criminal prosecution out and Attorney Glik then filed this civil suit under 42 U.S.C. §1983. The suit also names the individual police officers in their individual capacity as defendants. The City and the individual police officers filed an interlocutory appeal from the trial court’s ruling denying them qualified immunity from Glik’s suit. The Court of Appeals affirmed holding that his arrest was without probable cause and clearly violated his Fourth Amendment rights.
I hope the city doesn’t pay the judgment against the individuals that is likely to now result. If some cops have to lose their houses to stop this war on photography and its consequent harassment of law-abiding citizens, so be it. Cops have to realize they are policing Americans; we are free citizens of a Constitutional Republic; we are not peasants in some third-world tyranny ruled by a criminal gang.