Federal court o.k.'s citizens' right to film police E-mail
Written by Mark Nichols   

According to a ruling from the federal First Circuit Court of Appeals in Boston, police can not arrest citizens for filming them in the course of their duties because it is a violation of First Amendment rights. The federal court's ruling is the first of its kind and could have major consequences for public safety agencies nationwide.

 

The ruling stems from the case of Simon Glik, a Boston attorney. Glik was arrested for filming Boston police officers that were arresting a man on Boston Common.

According to the ruling, "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 court also found that "a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public place is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The ruling has obvious implications for officers and agencies that currently arrest individuals that film police activity. In New Hampshire alone, citizens have been arrested for recording police officers performing their duties in the cities of Weare, Nashua, Manchester, Portsmouth and Keene.

"I think the ruling is a win-win for law-abiding citizens. In my opinion, it is unconstitutional to stop people from videotaping police in public places," Rep. Al Baldasaro, R-Londonderry, told Union Leader reporters.

Keene Police Chief Kenneth J. Meola said the First Circuit ruling would not mean any change for his department, because it is in fact legal in New Hampshire to record police in public places despite the fact that arrests have been made for doing just that.

As is the case in other states, legislation has been proposed to clarify when and under what circumstances police can arrest citizens for filming them. But to date none of those proposals have become law. Rep. is the prime sponsor of New Hampshire House Bill 145 that outlines when the public does not have the right to film law enforcement officers. The New Hampshire Senate will act on the bill in January.

The federal court's written decision in Boston included the following:

"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." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "freedom of expression has particular significance with respect to government because the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties . . . "

"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." Id. at 462-63. The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces."

"The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was "secret" merely because the officer did not have actual knowledge of whether audio was being recorded."

 


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Comments (1)Add Comment
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written by Gerry, October 26, 2011
Keene Police Chief Kenneth J. Meola said the First Circuit ruling would not mean any change for his department, because it is in fact legal in New Hampshire to record police in public places despite the fact that arrests have been made for doing just that.

Is that an accurate quotation of what Mr Meola actually said? It is utterly nonsensical.

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