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Victory for liberty and the right to videotape public officials

Posted by Carol Rose, On Liberty  August 30, 2011 11:05 AM

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Hear ye, hear ye!!

The First Circuit Court of Appeals--the highest federal court for New England just below the U.S. Supreme Court--last Friday handed down a ground-breaking decision defending our right to videotape the police and other public officials as they engage in their official duties--including when, as in this case, the cops appear to be beating a man on the Boston Common.

As I described in my June 8 "On Liberty" blog, the case involved Simon Glik, a passerby on the Boston Common who pulled out his cell phone video camera when he saw the Boston police punching a man as bystanders shouted, "You're hurting him."

Rather than walk away, Simon pulled out his cell phone. Standing 10 feet away, he videotaped the incident. Although he never interfered with the officers' actions, the police arrested Simon--handcuffing him and seizing his phone. They charged him with violating a wiretap statute that prohibits secret recording (although police admit that they were aware Simon was not acting secretly), aiding the escape of a prisoner, and disturbing the peace.

A court subsequently threw out all criminal charges against Simon as lacking merit. But the effort to intimidate him was clear.

So Simon and the ACLU filed a civil rights suit to ensure that other innocent people won't be similarly arrested for doing what most people would consider a civic duty--documenting public instances of police misconduct.

On Friday, the First Circuit agreed. In a decision that reads like an ode to the First Amendment as key to both liberty and democracy, the court wrote:

"The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles [of protected First Amendment activity]. 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."

Attorneys for the city argued that police should have been immune from a civil rights lawsuits in this case because, they asserted, the law is unclear as to whether there is a "constitutionally protected right to videotape police carrying out their duties in public".

Making the law crystal clear, the Court responded: "Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative."

The Court further stated that such protections should have been clear to the police all along, noting that the right to videotape police carrying out their duties in a public forum is "fundamental and virtually self-evident", particularly on the Boston Common--the "apotheosis of a public forum."

The Court also made it clear that the right to videotape public officials isn't limited to the press. Rather, the Court noted, "the public's right of access to information is coextensive with that of the press."

"Moreover, changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw," the Court continued. "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."

The Court also acknowledged the need for balance between holding public officials "accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably."

Nonetheless, the court concluded, "In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment right."

"[T]hough not unqualified, 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."

Huzzah!

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. A lawyer and journalist, Carol has spent her career working for and writing about human rights and civil liberties, both in the United States and abroad. More »

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