Wednesday, December 7, 2011


ANOTHER CLICK IN THE WALL: The fact that "Photography Is Not A Crime" when taking pictures of police in the performance of their duties- with certain caveats- has been a subject that has piqued our interest many times in this space, most recently when it hit home with the case of blogger Damon Tucker who was arrested and apparently beaten- allegedly by Big Island police.

The charges of obstructing a government operation against Tucker were dropped- without prejudice, meaning they can be brought again- and Tucker has said he is planning on a lawsuit although he hasn't done so... yet.

But his case may be bolstered due to an appellate ruling by a federal, three-judge panel in the First Circuit which has denied limited immunity to cops who arrested one Simon Glik based, the court ruled, on his First and Fourth Amendment rights.

In refusing to grant immunity to the officers the panel ruled that:

Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause...

(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.

The story goes that:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts's (sic) wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

But, importantly, due to other rulings the judges ruled that, because Glik was openly recording the events he was not in violation of the "wiretapping" laws that many police across the nation have tried to use as "probable cause" and therefore a defense and a reason to arrest those taking picture of police.

As to the actual First Amendment rights, the court was unequivocal- a significant ruling in that it is apparently the highest appellate ruling in this kind of case. They wrote:

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.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is . . . well established that the Constitution protects the right to receive information and ideas.”). 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.’” Houchinsv. KQED, Inc., 438 U.S. 1, 11 (1978) (quoting Branzburg v.Hayes, 408 U.S. 665, 681-82 (1972)).

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.”

Similarly the court threw out Fourth Amendment claims because of the open nature of the recording and therefore the lack of probable cause. Massachusetts law- as is true in most states- says that, to be considered wiretapping, the recording must be made secretly.

Also significant was the fact that the court said it doesn't matter if the person taking the pictures is a reporter or journalist, as was an issue in "blogger" Tucker's case as well as many on the mainland.

They said that:

It is of no significance that the present case... 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.

This. of course, is not the end of it, just a small victory in only one circuit and just by a three-judge panel, not an "en banc" (the full appellate court) ruling.

But it is significant for the sweeping nature of the words that can and no doubt will be used by other circuits when dealing with the issue of whether private citizens are entitled to photograph- which of course includes taking video- police in a public place as long as they are not impeding the actions of the police.

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