In a ruling that could play a significant role in solidifying the emerging consensus that citizens have a constitutional interest in monitoring the activities of police officers, the First Circuit recently recognized that a Massachusetts man’s right to video and audio record police making an arrest  was “clearly established” under the First Amendment.

The decision, Glik v. Cunniffe (1st Cir. 2011), had its origins in a 2007 incident in the Boston Common. Simon Glik was walking in the park when he noticed a disturbance surrounding three police officers making an arrest. After another bystander protested the amount of force the police were using, Glik approached and started to record the scene on his cell phone, which captured both video and audio. After asking Glik if he was making an audio recording, the police arrested him for violating Massachusetts’ Wiretapping Statute, which prohibits the “secret use” of recording devices by private individuals. Since Glik’s actions were anything but covert, the wiretapping charges were dismissed; two other charges of “disturbing the peace” and “aiding in the escape of a prisoner” — both likewise unfounded — were dismissed as well.

The case found its way to the First Circuit after Glik pursued a § 1983 civil action against the officers and the officers moved to dismiss on grounds of qualified immunity. In affirming the district court and denying the officers’ claims, the court had occasion to emphasize the extent to which Glik’s actions were firmly within his constitutional rights. Relying on the “two-pronged” analysis of qualified immunity claims it had enunciated in its 2009 decision in Maldonado  v. Fontanes, the court found that (1) Glik had successfully alleged a violation of his constitutional rights, and (2) the right in question was a “clearly established” one.

The court framed the First Amendment issue as a “fairly narrow” one: the “right to videotape police carrying out their duties in public.” Starting with the basic principle of Stanley v. Georgia that “the  Constitution  protects  the  right  to receive information and ideas,” the court went on to note two important reasons to reaffirm that the recording of public officials—at least when they act in public—lies well within the zone of the First Amendment’s protected activities.

First, the Glik court noted that, given the First Amendment interest in preventing government from “limiting the stock of information from which members of the public may draw” (First Nat’l Bank v. Bellotti), such supervision by members of the public can serve as a valuable check on the government’s “incentive to repress opposition.” This is especially true in the case of police officers, who are granted a degree of discretion to restrict liberty which often goes unrestrained by the system’s more formal mechanisms of review.

Second, the court relied on the commonsense notion that technological change has decentralized and democratized press freedoms: “The First Amendment right to gather news is, as the [Supreme] 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.” Reaching back to the landmark language of Branzburg v. Hayes, the court explained that, for a private citizen as well as for a newspaper, there exists an undeniable right to gather information “from any source within the law.” This reasoning represents a salutary extension of the logic underlying such past Supreme Court cases as Richmond Newspapers v. Virginia (1980), in which the Court recognized the special nature of the press and public’s right of access to the “criminal process.”

The First Circuit in Glik found that the right to record police officers publicly, and the First Amendment rationales underlying it, were well settled by precedent; the appellant police officers could only point to two arguably conflicting cases–one of which was unpublished and both of which were decided after Glik’s arrest.  Without passing on the validity of the Massachusetts Wiretapping Statute, then, the First Circuit nonetheless found that a reasonable police officer should have known that he was infringing Glik’s “clearly established” First and Fourth Amendment rights by interrupting his recording and arresting him. In limiting the scope of its holding to overt and public recording — it praised the Boston Common as “the apotheosis of a public forum” — the court left the door open to claims of reasonable “time, place, and manner” restrictions in borderline cases.

As several commentators have noted, the Glik decision may have some significance in circumscribing government restrictions on recording not only in Massachusetts, but in Illinois as well. Currently, Massachusetts and Illinois are notable in defying the emerging nationwide consensus by employing wiretapping or “eavesdropping” laws to prosecute citizen recordings of police action. While the First Circuit did not overturn the Massachusetts statute — nor could it have on the narrow issues presented to it — the clarity of the ruling may help embolden future arrestees in Glik’s situation and further deter police from more egregious violations. Future cases of covert, or arguably covert, recording — such as the case arising from a student’s filming of Boston University police action during a political protest in 2006 — would still be subject to prosecution, but Glik at least enunciates a clear constitutional right against which any asserted government interest must be balanced.

In Illinois, whose Eavesdropping Statute as currently written bans audio recording without the consent of all parties involved, Glik has seemingly already had some effect. Only days after the Massachusetts ruling, an Illinois District Court reversed the conviction of a man who had been sentenced to 75 years in prison for five counts of eavesdropping violations in recording the police. Noting that the statute’s application to such a case was a clear departure from the privacy-protecting goals of the legislation, the court also found that its application unconstitutionally “impedes the free flow of information concerning public officials and violates the First Amendment right to gather such information.” As the Reporter’s Committee for Freedom of the Press noted, the court also referred to Glik as “persuasive authority.”  The Seventh Circuit in Chicago also heard arguments this month in ACLU v. Alvarez, in which the ACLU is seeking a declaratory judgment that the Illinois statute is categorically unconstitutional as applied to citizens’ audio recording of the police. The appeal to the Seventh Circuit follows a District Court ruling, handed down by Judge Suzanne Conlon before Glik  was announced, which perplexingly found a lack of any “authority that the First Amendment includes a right to audio record.” ACLU v. Alvarez (N.D. Ill 2011).

In comments at the argument of ACLU v. Alvarez before the Seventh Circuit, Judge Posner expressed his worries about the possible runaway consequences of weakening the Illinois statute; “there is such a thing as privacy,” he noted. Though there is, of course, a real constitutional interest in protecting all citizens from eavesdropping, wiretapping, or surreptitious recording — whether by other private citizens or by the government — Posner’s apparent concerns fail to appreciate the extent to which Illinois (and Massachusetts) have been outliers in using anti-eavesdropping laws as a weapon against public monitoring of the police. The overt use of recording equipment in a public place is a far cry from the kinds of intrusive media “snooping” on private property to which courts have denied First Amendment protections in the past. Making it clear that holding police officers accountable through observing and recording their actions is a core constitutional right — as the First Circuit did in Glik and the Seventh Circuit has an opportunity to do in ACLU v. Alvarez — can help to clarify distinction between the universal interest in privacy and local government’s interest in shielding itself from scrutiny while acting in full public view. As Justice Burger – himself no staunch civil libertarian – once noted: “It is important that society’s criminal process satisfy the appearance of justice, and the appearance of justice can best be provided by allowing the people to observe it.” (Richmond Newspapers v. Virginia).  Police treatment of citizens during and after arrests is as much a part of the “criminal process” as is a trial; it is only appropriate to recognize that citizens have a right to monitor overt police activities as much as they have a right to monitor public criminal trials.