US court endorses right to capture police by video or photo
The US Court of Appeals for the First Circuit last month ruled that there is a clearly-established First Amendment right, under the US Constitution, to film police officers performing their duties in a public space.
The case stems from a 2007 incident, when police officers arrested Simon Gilk after he openly recorded three police officers arresting a suspect on the Boston Common.
Circuit Judge Kermit Lipez, speaking for the unanimous three-judge panel, rejected the officers’ claim that they had qualified immunity since the law regarding recordings of police action is not well-settled. The opinion recognized that the undoubted right to gather news from any source, by means within the law, is an important corollary to the First Amendment saying:
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. … 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.
Lipez cited well established case law and stressed that the right to gather news is not one solely to the benefit of the news media but also extends to a private individual. The court recognized that the right to record is not without limitations and is subject to reasonable time, place, and manner restrictions.
The police officers arrested Gilk and charged him with violating a “wiretap” statute (basically, they claimed that ‘secretly’ recording them wasn’t allowed), disturbing the peace, and aiding in the escape of a prisoner. They dropped the last charge, recognizing that they did not have probable cause.
The other two charges against Gilk were also dismissed by a Boston Municipal Court. In February 2010, Gilk filed a complaint for violation of his First Amendment and Fourth Amendment rights. The officers appealed to the First Circuit court after the district court denied the officers’ motion to dismiss the case because the officers had qualified immunity.