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Wednesday, August 31, 2011

First Circuit Recognizes First Amendment Right To Videotape Police In Performance of Their Duties

The First Circuit has upheld an individual's right to videotape police "engaged in their duties in a public place, including police officers performing their responsibilies," under the First Amendment, in Glik v. Cunniffe.   Simon Glik, a Boston attorney, taped police arresting a man on Boston Common. When officers saw Mr. Glik taping them, one of them said to him, "I think you have taken enough pictures." He did not stop, and eventually they took him into custody as well. After the Commonwealth dismissed several charges against him, and a court dismissed other charges. Mr. Glik filed a complaint with the Police Department, and eventually filed a suit against the department. The District Court found in his favor. The Department appealed.

Said the First Circuit,

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." ... 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.

...


In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir. 1999), a local journalist brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway outside a public meeting of a historic district commission. The commissioners had objected to the plaintiff's filming.... When the plaintiff refused to desist, a police officer on the scene arrested him for disorderly conduct. ...The charges were later dismissed.... Although the plaintiff's subsequent § 1983 suit against the arresting police officer was grounded largely in the Fourth Amendment and did not include a First Amendment claim, we explicitly noted, in rejecting the officer's appeal from a denial of qualified immunity, that because the plaintiff's journalistic activities "were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them." ...

Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.

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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, as in Iacobucci, 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." ...

...

Though the "clearly established" inquiry does "not require a case directly on point,"... we have such a case in Iacobucci. What is particularly notable about Iacobucci is the brevity of the First Amendment discussion, a characteristic found in other circuit opinions that have recognized a right to film government officials or matters of public interest in public space. ...This terseness implicitly speaks to the fundamental and virtually self-evident nature of the First Amendment's protections in this area. ...We thus have no trouble concluding that "the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional." 

...


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. Accordingly, we hold that the district court did not err in denying qualified immunity to the appellants on Glik's First Amendment claim.


Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2011/08/first-circuit-recognizes-first-amendment-right-to-videotape-police.html

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