A 1st Amendment victory for video

A 1st Amendment victory for video

Summary: Cops and some congressmen may not like it, but a Federal court has ruled that recording public officials, including police, performing their public duties is a protected 1st Amendment activity. Good!

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TOPICS: Storage, Government
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Just the facts Citizen Simon Glik was walking in nation's oldest public park, the Boston Common, and stopped to video 3 police officers arresting a young man. After the arrest one of the officers turned to Glik, confirmed that he was recording audio, and arrested him for violating the state's wiretap statute.

Glik was charged with wiretapping, disturbing the peace and aiding the escape of a prisoner. The last was so silly the state dismissed the charge.

The Boston Municipal Court found Glik not guilty of the other charges, noting the audio recording was not secret and carried out in plain view. Glik complained to the police, but they refused to investigate, so he filed a civil rights suit for violation of his 1st and 4th Amendment rights.

The officers claimed "qualified immunity" - a rule meant to protect public officials from legal harassment while performing their lawful duties - which was denied by the US District Court. The officers appealed to the US Appeals Court for the 1st Circuit - kind of like 2nd level tech support - which issued this historic ruling.

Public video of officials is an "established right" The cop's legal argument was that Glik's recording their actions was not an "established right." The Court did not agree.

All citizens with a video phone or camcorder should read the Court's opinion (pdf). It is readable and thoughtful, deconstructing the issues in plain language.

Here's a key conclusion:

In summary, though 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.

Yay!

Not only police Lest you think this is only an issue with the police, it isn't:

Monday night, at a “town hall” meeting in North Avondale featuring U.S. Rep. Steve Chabot, video cameras owned by two Democratic activists were seized by a Cincinnati police officer at the direction of Chabot’s staff.

Cameras belong to the media were not seized. A stink was raised and the 7-term congressman said it wouldn't happen again.

The Storage Bits take Your rights: use 'em or lose 'em. Video is a major driver of storage consumption for good reason: while memories are terribly unreliable, video captures detail that few humans can equal.

The Founder's concern for governmental abuse of power led them to the separation of powers that makes government inefficient and slow - a feature, not a bug. But we give local officials, including police, considerable discretion in the performance of their duties, discretion that is sometimes abused.

Widespread video use helps protect both police and citizens from unfounded accusations while offering greater transparency to us all. This ruling doesn't end the fight for our rights, but it is an important milestone.

Comments welcome, of course. Hey, maybe the Supremes will someday acknowledge even the 9th amendment. Nah, too radical for our "originalist" conservatives.

Topics: Storage, Government

About

Robin Harris has been a computer buff for over 35 years and selling and marketing data storage for over 30 years in companies large and small.

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42 comments
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  • Guess they don't always fail

    Glad they finally got something right. It's stupid you can't record an officer. They have to keep the peace but they need to be accountable also. Do your job right and the video won't matter.
    LiquidLearner
  • It was ridiculous that it even went to trial

    The authoritarians have been claiming even more privileges and immunities in the past twenty years. Today many cops (and courts) now operate on the assumption that anything they feel like making up is "law". This is one step, albeit a small one, in the right direction. But mark it well, most police will continue to ignore it and arrest, seize, or otherwise harass anyone who dares to record them or question their actions. They are used to their "shields of secrecy" and will not give them up.
    terry flores
    • RE: A 1st Amendment victory for video

      @terry flores You say, "But mark it well, most police will continue to ignore it and arrest, seize, or otherwise harass anyone who dares to record them or question their actions."

      I don't agree with that. There are too many instances and examples of police being recorded, with only a few being in the category of the police taking action against the person doing the recording. For the most part, I think the cops have gotten used to the idea they most people have phones or other devices that record, and they just go with the flow... Most cops are good folks. It is unreasonable to make a general statement that denigrates the lot.
      notme403@...
      • RE: A 1st Amendment victory for video

        @notme403@... Although I agree the majority of LEO's are well-intentioned and respect the public and the law, I have had contact with a few that clearly fit into Terry's description. It is naive to think that you won't be harrassed for taping a situation involving police. I'm not saying don't do it, just be prepared for the reaction.
        milesandmiles
      • Unfortunately ...

        @notme403@...

        ... the cops whose activities <i>should</i> be filmed are the ones who will ignore this ruling, just as they ignore arrestee's rights.
        fairportfan
      • RE: A 1st Amendment victory for video

        @notme403@... actually the Oregon laws is that no one can make an audio recording of another person, without their knowledge, including Police Officers. But they don't bother telling you they have a recorder in their pocket that is turned on when they exit the vehicle.

        If they find out after the fact that you made an audio recording, they can seize it, but picture and video are not included in the law.

        BUT.. if you shout out that you are going to record the events, they can't object when they were inform before the fact.

        As usual, designated media is excluded... Associated Press has it's priveledges...
        MutantBeingX
  • RE: A 1st Amendment victory for video

    Recording of police with audio (and I think video also) is illegial in Oregon.

    Until there is conflicting US court of Appeals rulings, and someone / group has the millions it takes to get to the supreme court, the ability to record video / audio will vary from region to region until the Supreme court rules.
    TAPhilo
    • Actually, no

      @TAPhilo
      When Federal Court rules that an activity is protected by the Constitution, that trumps State and Local law.
      use_what_works_4_U
      • Unfortunately ...

        @macadam

        ...only in the Circuit or District where the ruling comes down.

        What happens next is that when someone gets popped for the same thing in another jurisdiction, the courts there either issue an opinion following the other Court's precedent, or one opposite it.

        And then it goes to the next level - only when the Supreme Court rules one way or the other does the ruling supersede all State and local law.

        That takes a while.

        Meanwhile, remember: Even if your local law forbids such things and hasn't been overruled - except for at the borders, where you have no rights, the cops require a court order or warrant to seize your recording or film. Even if they arrest you, they can't touch your media until the courts say so.

        Of course, "accidents" happen. Often eighteen minutes at a time.
        fairportfan
      • RE: A 1st Amendment victory for video

        @macadam

        Only when Federal Court rules on the case. This case never got that far. Only made it US Appeals Court for the 1st Circuit (key words 1st Circuit). It would need to be Supreme Court or Federal Appeals.
        MutantBeingX
  • This is actually a very complicated issue

    MA's wiretapping law is actually there to *protect* individuals from being spied upon, not to protect police officers, but this ruling may open a can of worms. One of the key issues at stake was whether or not the filming was done in secret. Here in MA, we have the very reasonable "wiretap" law that says if you are going to record someone, they have to *know* you are doing it, unless you get a warrant. I fully agree with this measure.<br><br>The court decided that Glik was not acting in private, because he did not conceal his phone. The police argued that just having a phone out in front of you does not make it obvious you are recording.<br><br>All in all, I think there is a strong downside to this ruling, as well, although I strongly agree that policing the police is a vital public interest.<br><br>(By the way, the case hinged on the Fourth, not First, amendment.)
    x I'm tc
    • RE: A 1st Amendment victory for video

      @jdakula Not according to the PDF of the courts ruling. In it they specifically state that because his first amendment rights were violated and because there was no probable cause for arrest that his fourth amendment rights were also violated.
      I12BPhil
      • RE: A 1st Amendment victory for video

        @I12BPhil
        jdakula does bring up a valid point though. Personally I am all for this, because the abuses of power we've seen in many areas is just appalling... Still, if there are laws against recording audio without those being recorded having full knowledge, I have to agree that those laws were (or may have been) damaged by this ruling. If the officers saw him and could reasonably be said to know he was recording then no, but if the call is that they /could/ have known since he wasn't purposely concealing it, then I don't know. I guess it depends on how the "wiretap" law is worded. Does secrecy mean that you made actual attempts to conceal your recording, or just that the subject being recorded had no knowledge? Seems like the second to me, because I know in a lot of states companies are required to inform you if they are recording you. If it was the former, they wouldn't have to do that as long as they didn't actively try and HIDE the fact.
        thisnameisok
    • RE: A 1st Amendment victory for video

      @jdakula

      I have the greatest respect for LEOs, as my father-in-law is a retired sheriff's deputy. However, these particular officers were way off-base for trying to invoke "wire-tapping" rules. Wire-tapping is specifically the tapping of electronic communications -- telephone calls (landline, VoIP, & mobile), email, Internet browsing, etc. It's *never* involved the recording of activities by people in a public place. By these officer's position, someone could be videotaping the family on vacation, & if a police cruiser happens to be driving by while they're filming the police would label it "wire-tapping"... which it obviously isn't.
      spdragoo@...
      • RE: A 1st Amendment victory for video

        @spdragoo@...
        I think that's the name of the statute that covers this legal area, but it doesn't necessarily only apply to what is commonly thought of as wiretapping. It may be different in this case, I don't know- but I know several states have laws that state that you can't make any audio recording of someone without their knowledge and (at least implied) consent. I believe that int those states, what you mentioned would /technically/ be illegal... even taking a video recording of your family that picks up other peoples voices..they may be able to bring some action against you for that in those states..or maybe there's some provision that protects against that, I'm not sure.
        thisnameisok
      • RE: A 1st Amendment victory for video

        @spdragoo@...

        You're sort of off base... if you are video tapping the family on vacation and the Police car goes by, the actions are out of focus, but once you turn the camera to their activity, you are no longer just videotaping the Vacation... It's all about the intent.

        As for the wiretapping laws, they cover "Any" recording without someone's knowledge.. a bugs are used to record all sorts of conversations with the mentioned...

        Which explains the ruling, that the audio recording was in plain sight and there by, they had full knowledge.

        The laws are meant to protect Government Agencies from using high tech gadgets to listen in to your private conversations.. they do actually have microphones that can pick up a flea hiccup from across a football field.
        MutantBeingX
  • I have to consider whether my actions are legal every day.

    About time we started holding the police to the same standard.
    Dr_Zinj
  • RE: A 1st Amendment victory for video

    As a former Federal LEO, I have to consider how difficult it is getting for law enforcement officers to SAFELY enforce the myriad tangle of laws in our country; as a basic libertarian at heart (Note: I DID say 'former' LEO!), I MUST applaud the decision in this case. It is the responsibility of every LEO to adhere to a higher standard in their public dealings with the public. ANY police officer who is going to be SO STUPID as to break the law to enforce the law, DESERVES to be Video-recorded and EXPOSED to PUBLIC DISPLAY! And dismissed for CUBO. And (at the VERY least) fined - if not given a free stay at the Crossbar Hotel for three hots and a cot, plus a physical fitness/survival course in the yard. Same basic class as a LOT of politicians. But I digress, here.
    Basically, it's a case of what the Latin calls I believe, Quie custodiet las custodies; "Who shall watch the watchers?" or "Who shall guard the guardians?"
    That's what the Courts are FOR; to watch out for our rights.
    MadYank
    • RE: A 1st Amendment victory for video

      @MadYank

      Spot on... but I would like to add, there should be zero expectations of any private activity in a public area. Just the same as, when you walk into someone else's private area (like Police into someone's home), there should not be the expectation that the officers have privacy..

      I always find it funny when talking about this very conversation (I work in the media and it comes up alot). Only people that find a problem with being recorded, usually have something they are trying to hide.
      MutantBeingX
  • RE: A 1st Amendment victory for video

    The "wiretap" law should not apply in public. If I can see or hear something while walking in a park I should be able to record it as well. Must I get the permission of each person at the park before I videotape my daughter on the swings?
    rbkrbk