1st Circuit Rules Recording Police Protected by First Amendment

The 1st Circuit Court of Appeals has issued an enormously important ruling that says recording police officers during an arrest is not only constitutionally protected, but so clearly constitutionally protected that it overrides qualified immunity for an officer who arrests someone for doing it. You can read the full ruling here (PDF).

As Balko notes, that distinction is important. This was not a criminal case; the charges were dropped in this case. But the plaintiff then filed a civil suit, arguing that the arrest violated his First and Fourth Amendment rights. The district court ruled in his favor and the appeals court has now upheld that ruling.

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.”…

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.”

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….

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). 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.”

I’ll drink to that.

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  • Well, now that that’s settled, let’s all make sure crooked cops have nowhere to hide.

  • Blondin

    It seems to me that, now that this is settled, it is in everyone’s interest for the cops to start carrying some kind of recording device to make sure they have their own (unaltered) record of events.

  • D. C. Sessions

    Before y’all start treating this as a settled point of law, recall that this is only binding in the First Circuit. It’s of no use to me here in the Ninth, nor in DC, nor …

    The only way this becomes nationally settled law is when the USSC affirms it. Of course, there’s also the possibility that the ScaliaRoberts court might reverse it.

  • fastlane

    What’s the over/under on this getting appealed?

    I wonder if this is a case the SCOTUS would want to take, and can they get 5 of the current lineup to go along with the cops?

    I’m thinking Scalia and his ‘new professionalism’ is a shoe in, but I’m unsure of the rest.

  • Remo

    As DC Sessions points out, it is only the First Circuit and the ruling is not binding on the rest of the country.

    As an aside, the recent spat of laws that prohibit the videotaping of policemen in public usually rest on the officer’s “right of privacy”

    It would seem very strange to me that the USSC would uphold an officer’s right of privacy in public, but deny a woman’s right to chose to have an abortion which is founded on the right to privacy. (Most of the case law on in the area of right to privacy deals with sex and related stuff)

  • D. C. Sessions

    It would seem very strange to me that the USSC would uphold an officer’s right of privacy in public, but deny a woman’s right to chose to have an abortion which is founded on the right to privacy.

    It’s a lot easier to understand when you realize that “privacy” is a pretext, not a principle.

  • Of course I realize it’s not really settled. Even if it was settled all the way up to the supreme court, there’d still be cops abusing their power and trying to cover up video evidence. But I’ll still have my recording gizmos handy if I see an arrest taking place.

  • Cor (formerly evil)

    Has anybody told Ian Murphy? The Beast has been running updates on his arrest on exactly this bullshit charge. . . also he was in possession of an oversized novelty dildo.

  • dcsohl

    The court asked, “is there a constitutionally protected right to videotape police carrying out their duties in public?”

    I’m interested if there is any right to videotape police carrying out their duties in private? For example, if they are in my home, do I have a right to videotape them? Has this been asked / answered / settled?

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