The US Court of Appeals for the First Circuit’s recent decision on videotaping the police in public is a big deal, and for reasons that go well beyond the Massachusetts wiretap law. As has already been noted here, the Court allowed a civil rights lawsuit to go forward against the City of Boston and several police officers who had arrested a guy with a cell phone camera who videotaped the officers arresting someone on the Boston Common. In so doing, the Court made it crystal clear that the MA wiretap law cannot be used against people who videotape the police in public in the course of carrying out their duties.
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…. [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.
Less attention has been paid to some other aspects of the Court’s opinion, but they are particularly important for folks like you – folks who read blogs, and who maybe like to post photos or videos to them when they catch something interesting, but who aren’t professional journalists. Emphasis mine.
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…. [C]hanges 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.
Frankly, that is a huge deal. I don’t know offhand whether that is the biggest shout-out ever given to bloggers in a First Amendment case from a federal Court of Appeals, but it certainly has to be among them.
dcsohl says
Ok, this case covers recordings made “in a public space”. Couple of questions here… First, what is a public space? Certainly the Common, but what about a mall? Is that a public space? Maybe only during business hours?
Secondly, do I have any recognized right to record police conduct in, say, my home? Or, if I am a mall employee, what about at the mall outside of business hours?
dont-get-cute says
I don’t see how something could be a public accommodation without being a public space, though a lawyer might find some room for parsing out a difference. And why would a non-public accommodation suddenly make videotaping police illegal? Surely if they were in my own home, or even a friend’s home as a guest there, I should have even more right to film the police than on the street, right?
Mark L. Bail says
create some sort of boundary for recording people without a warrant?
We’ve had two issues with this in Western Mass: 1) Most recently a Springfield cop who was present at the beating of a suspect tried to press charges on the woman who recorded it; the magistrate refused to let charges go forward. 2) In 2007, a Greenfield police officer arrested a woman for taping the arrest of a war protester.
It’s good that the SJC has ruled.
JimC says
This court is pretty good on free speech issues.
shawn-a says
I believe it is the last in the list of ballot questions put forth for next year.
it would add recording a public official while doing his job as an exception to the state wiretapping laws.
I’m sure it wouldn’t hurt to get this passed just to force the issue.