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First Amendment Protects Secretly Recording Government Officials in Public

By Michael J. Lambert

Recording police officers performing their duties in public, once a potentially perilous act, has become a clearly established constitutional right. Each U.S. Circuit Court of Appeals to address the question (First, Third, Fifth, Seventh, Ninth, and Eleventh) has held that the First Amendment protects recording police conducting official activity in public.

In December, a Massachusetts federal district court went further, becoming the first court to explicitly find that the right extends to secretly recording government officials performing their duties in public.

The U.S. District Court for the District of Massachusetts ruled that the state's wiretapping statute, as far as it criminalizes surreptitiously recording government officials in public, violates the First Amendment. Martin v. Gross, No. 16-11362-PBS (D. Mass. Dec. 10, 2018). "Secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions," Chief U.S. District Judge Patti B. Saris wrote.

Background

The court consolidated constitutional challenges brought by Project Veritas Action Fund, a conservative political organization, and Boston activists K. Eric Martin and René Pérez, represented by the ACLU of Massachusetts. The local activists, who often face safety concerns when recording in public, sought the ability to secretly record police without potential prosecution.

Their fear was not without merit. The Suffolk County District Attorney's Office opened at least 11 cases involving felony charges under the Massachusetts wiretap statute since 2011. And Boston police training videos specifically emphasized the illegality of recording police in secret.

The Massachusetts wiretap statute, enacted in 1968, criminalizes recording a communication without the consent of all parties involved in the communication. This contrasts the federal wiretapping law and the majority of state wiretapping laws, which allow recording with the consent of one party to the communication. The Massachusetts law also prohibits "the secret use of [surveillance devices] by private individuals."

The U.S. Court of Appeals for the First Circuit faced a similar challenge to the Massachusetts wiretap statute after Boston police charged Simon Glik under the law for filming police officers making an arrest on the Boston Common in 2007. The First Circuit, in Glik v. Cunniffe, held that individuals had a First Amendment right to record police carrying out their duties in public.

Analysis

Martin v. Gross teed up a question not addressed in Glik — whether the right also applied to secret recordings. Applying intermediate scrutiny, Judge Saris determined that the Massachusetts wiretap statute was "not narrowly tailored to protect a significant government interest when applied to law enforcement officials discharging their duties in a public place." She found that the "First Amendment interest in newsgathering and information-dissemination" outweighed the "diminished privacy interests of government officials performing their duties in public." By prohibiting all secret audio recordings of any encounter with a government official, even those in public, the government "severed the link" between the law's means and its end.

Conclusion

Under the court's decision, journalists and individuals in Massachusetts can secretly record public officials performing their duties in public without legal risk. As the killings of Eric Garner and Water Scott demonstrated, the ability to record police bolsters the public's ability to monitor the government and ensures that truth is revealed.

"We've seen that videos of police officers can show the realities of policing in powerful ways: People's recording of police interactions have started national conversations about police reform and accountability," Carol Rose, executive director of the ACLU of Massachusetts, said in a statement after the decision. "This ruling reaffirms that the fundamental right to record police officers do not disappear when a recording device is covered."

So far, Judge Saris stands alone in holding that the right to record official activity in public extends to surreptitious recording. However, barring a First Circuit reversal, her decision may represent the first in a new wave of expansion for the right to record.

Michael J. Lambert is a Media/First Amendment Associate Attorney at Prince Lobel Tye LLP in Boston.

 
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