A federal judge today ordered Boston Police and the Suffolk County District Attorney's office to notify officers and prosecutors that people generally have the right to secretly record cops and other public employees and officials in public places.
US District Court Judge Patti Saris's ruling today comes after she ruled in December that a state law prohibiting people from secretly recording police officers violates the First Amendment. In today's order, she writes:
The Court declares [the state law used to bar such recordings] unconstitutional insofar as it prohibits the secret audio recording of government officials, including law enforcement officers, performing their duties in public spaces. This prohibition is subject to reasonable time, place, and manner restrictions. The Court orders that this declaration be provided to every police officer and to all assistant district attorneys within 30 days.
Saris's ruling covers two separate cases against Boston Police and the DA's office, one by a pair of local activists, who secretly recorded interactions between police and the public on the Common and at Arizona BBQ in Roxbury, one by Project Veritas, an out-of-state group that specializes in secret recordings that are then selectively edited to try to embarrass Democratic officials and leftwing groups. That group wants to use "hidden necktie cameras, purse cameras, eyeglass cameras, and cameras whose lenses are small enough to fit into a button or rhinestone" in Boston videoing.
In her ruling today, Saris made a point of specifying she was referring specifically to such secret recording because an earlier ruling by a federal appeals court in Boston in the case of a lawyer arrested for recording two Boston cops making an arrest on the Common referred specifically to open recording - the cops making the arrest knew the lawyer was recording them.
In her December ruling, Saris had ordered police and the DA to negotiate with the plaintiffs to define just what Saris had ruled the state law unconstitutional in December.
Her ruling today rejects requests by Boston Police and the DA's office to narrow the scope of just what a public place is - and to allow a continued ban against recording police officers talking to private citizens, under the theory people would be less willing to provide information to police if they knew somebody might be recording them.
On that issue, Saris turned to both her earlier ruling and the facts of the Common lawyer case:
[I]n Glik, the plaintiff was arrested for recording several police officers arresting a man on the Boston Common. The First Circuit [Court of Appeals] found that the plaintiff had a First Amendment right to do so notwithstanding the fact that the recording also captured a civilian (i.e., the arrestee). Moreover, the police retain discretion to impose reasonable restrictions.
In December, she wrote that such restrictions could include certain meetings with informants or crime victims in public places, which gets to the issue of protecting investigations - in such cases, she said, police could order somebody to stop recording or move to a location away from any possible prying lenses. However, she wrote then, these are exceptions, not the Constitutional default, which she said was that people do have the right to record.
Sarris did agree with government attorneys to issue her ruling in the form of a "declaratory judgment" rather than an injunction. The difference is that an injunction would leave government officials open to possible contempt hearings.
Because there is room for disagreement about whether a restriction is reasonable, the threat of contempt for violation of the injunction is too blunt and coercive an enforcement mechanism in situations where decision-making is necessarily split second. Second, the Court has not defined the meaning of “public space” or “government official.” The issuance of an injunction could effectively implicate a judicial second-guessing of the policing function to determine whether the order was violated.