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Posted on 08/29/2011 9:15:51 AM PDT by marktwain
A Boston lawyer suing the city and police officers who arrested him for using his cell phone to record a drug arrest on the Common won a victory today when a federal appeals court said the officers could not claim "qualified immunity" because they were performing their job when they arrested him under a state law that bars audio recordings without the consent of both parties.
In its ruling, which lets Simon Glik continue his lawsuit, the US Court of Appeals for the First Circuit in Boston said the way Glik was arrested and his phone seized under a state wiretapping law violated his First and Fourth Amendment rights:
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."
The court noted that past decisions on police recording had involved fulltime reporters, but said the First Amendment does not apply just to professional news gatherers.
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.
The court continued that while exercise of these rights do come with limits in certain circumstances, an arrest on the Boston Common, "the oldest city park in the United States and the apotheosis of a public forum," is not one of them.
It’s a bit of a stretch to me that anyone can be “the press,” although these days, when the cost of getting information out there is virtually zero, perhaps the distinction between them and regular people is irrelevant. Nevertheless, I don’t feel comfortable calling this a rights issue. Laws against recording public officials are stupid, but do we have to invoke the sacred and inalienable prerogatives granted us by God and Nature for every little thing?
By the way, what will this mean for all the various ways the real press is restricted? Surely cameras from legitimate and recognized outlets are routinely turned away by the authorities in different circumstances. Could a TV station claim banning cameras from court violates amendment one? I’m as tired as anyone of the slippery slope argument, but I truly don’t see where this ends.
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“It has always amazed me that, with the constitution worded the way it is, that anyone could seriously suggest that somehow members of the press had more rights in areas like this than the rest of us.”
I’m confused. To what part of the constitution are you referring? Is videotaping the cops somehow speech? Is tape recording a cop covered under the 2nd amendment?
They have tried it in the past, it has not held up. I personally think it would be a good thing for judges to be recorded. If it was a particularily sensitive case, ban the publication of the recording until after the verdict is rendered.
No, just that a member of the press has a right to record things that the rest of us don’t. I think the only reason that the press has “special rights” is that there are many things/events that simply don’t have the room for everyone to attend, so the press sort of represents everyone.
But that has nothing to do with what one can record in public spaces. A few years ago some guy was caught videotaping underaged girls in bikinis at some Florida beach, and a judge said that since it was in a public place it was legal.
And the guy who had a video camera on his motorcycle helmet and left it on after the stop, and the cop comes after him with gun pulled. And after the video went viral the cops hauled the guy back in for videotaping the cop while performing his duty.
I believe that anything that happens in a public place in the US is, legally speaking, fair game in the US for recording, both video or audio. This includes public officials doing their duty. It is because we are all equal and one of the things that makes the US constitution a unique document. It is literally one of the things that separates us from a banana republic or the old Soviet Union.
In public, if you can see it, you can record it. The only challenge may be if you try to present it for a paid audience (which is why people are asked to sign release forms).
—Is videotaping the cops somehow speech? Is tape recording a cop covered under the 2nd amendment?—
I wasn’t really talking about videotaping or audio recording, per-se. I was talking about the idea that the press had the right to do things that the rest of us don’t. The only exception is when there is simply not enough room in the venue to invite the world, so the press has to be our proxy.
But recording events that happen in public? Whether a person is a member of the press or not is really irrelevant.
Sorry. Between the time my first response was posted and it was reviewed and then showed up, I forgot that I had already responded.
“No, just that a member of the press has a right to record things that the rest of us don’t.”
I think it’s quite reasonable that, though our technology didn’t exist at the time the constitution was written, recording things is part of the essence of the press.
“I think the only reason that the press has ‘special rights’ is that there are many things/events that simply don’t have the room for everyone to attend, so the press sort of represents everyone.”
Not sure why you put “special rights” in quotation marks, which would normally imply they don’t actually exist. They do exist, though, since obviously the constitution singles them out for special notice in the first amendment.
“But that has nothing to do with what one can record in public spaces.”
Well, that’s what this decision said. And absolutely the press has something to don with recording (whether via cameras, notes, or perhaps just a reporter’s memory) events in public spaces.
“A few years ago some guy was caught videotaping underaged girls in bikinis at some Florida beach, and a judge said that since it was in a public place it was legal.”
Was this a constitutional issue? Was there an actual law the judge set aside because he personally thinks what happens in public is open season? Or did he declare the law violate simply because he didn’t like it, without reference to any rights whatsoever?
“And the guy who had a video camera on his motorcycle helmet and left it on after the stop, and the cop comes after him with gun pulled. And after the video went viral the cops hauled the guy back in for videotaping the cop while performing his duty”
I saw that.
“I believe that anything that happens in a public place in the US is, legally speaking, fair game in the US”
I believe such laws may be stupid and wrong, but what do you mean, “legally speaking”? To what legal principle are you referring?
“It is because we are all equal and one of the things that makes the US constitution a unique document.”
I’m sorry, but this is just mumbo-jumbo. No actual legal principle is involved.
“I was talking about the idea that the press had the right to do things that the rest of us don’t”
But the first amendment clearly seperated the press and granted them different privileges from the rest of us. Unless you think “the press” meant anyone who does press-like things, which is getting ever more accurate every day. I’m not saying only such institutions as are, say, licensed by the federal government to spread news deserve special press status. But, traditionally at least, it didn’t just mean anyone.
Good...one step away from We the People having WebCams in our state and Federal representatives offices.
—Was this a constitutional issue? Was there an actual law the judge set aside because he personally thinks what happens in public is open season? Or did he declare the law violate simply because he didn’t like it, without reference to any rights whatsoever?—
I don’t remember. I thought it was constitutional. What annoyed me about it though was apparently the recordings showed clear intent.
This is sort of related: I remember cleaning a friends old computer for one of my kids to use and I had to throw it away, partly because it was too old, and partly because of what it had on it. Sure, it had porn, but what I found repulsed me even more is that he had pictures of strangers (women in bikinis) that he had taken at the beach. Naturally they were not as graphic as the porn, but just the thought of what he had been doing at the beach gave me the creeps.
It’s a shame there is not a way to protect kids from this a bit better. And as technology continues to improve it is clear the day is coming where people will be able to easily record anything they want with crystal clarity. And if you are in the photos and cannot make the case of reasonable assumption of privacy, there is nothing you can do.
With the creation of the internet, as someone on this thread said, the scope of the definition of “press” is sorely tested.
If I record something and post a youtube video with comments, am I the press?
You read more into my statement than is there, but it is understandable.
“It is for your own safety” is a common phrase from cops abridging someones rights.
In this case the phrase is applicable to LEOs while not abridging their rights.
Any public servant has NO reasonable right to privacy while in the execution of his duties. Privacy in government actions is anathema to a Republic.
I don’t see why not. “The Press” is just the ordinary citizenry acting in a certain capacity, much like “A well-regulated militia”. It’s not some special, lofty group.
“...there needs to be clear laws regarding this practice together with legal penalties for any LEO abridging that right...”
Union mentalities and Homeland inSecurity are transforming some of them into unprofessional, dimwitted thugs with even more cops and politicans taking up the role of making a bunch of unethical excuses for the bad apples in their ranks.
You are right. People should be able to record trials. Our whole law enforcement system could use some light of day to help them behave in light of the power they have over others.
This is especially true today - given the limo-Left has culturally cleansed the mentalities of the American constitution and ethics from the public square and especially from the educated elite.
Since the politicans gave Homeland inSecurity the power to spy on us - domestic terrorists all - in the name of safety, I guess turn around is fair play. We would all be a lot safer if were could spy on the government. We could have stopped ATF from arming the jihadists and drug lords.
I think that woman who grabbed and twisted the airport thug’s breasts while she was in the act of sexually molesting her, had the right idea. We should be allowed to “pat down” all the potential domestic terrorists in Congress. Except for Barney Frank. He would like it too much and it would be a public health threat. ;)
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