A federal appeals court ruled yesterday that people have the right to surreptitiously record police officers at work in "public spaces" such as parks, agreeing with two local activists that the First Amendment takes precedence over a state law banning private recording in that circumstance.
At the same time, however, the US Court of Appeals for the First Circuit in Boston rejected an argument to strike down the entire state law that bans secret recording, saying it raises vexatious issues related to the privacy of people with greater expectations of privacy than police officers out in public, basically everybody else.
The ruling comes in a decision on two cases brought under the state recording law, sometimes called Section 99, which prohibits recording someone without their permission.
In one case, Boston civil-rights activists K. Eric Martin and Rene Perez sued because they want to record police officers in public without fear of getting arrested. In the other case, right-wing activist James O'Keefe's Project Veritas sued so that it could record anyone in private, including landlords, people at alleged Antifa gatherings in Boston and government officials discussing immigration, without worrying about winding up behind bars.
A lower-court judge had sided with the local activists and Project Veritas - but Suffolk County District Attorney Rachael Rollins and Boston Police appealed.
The court first started by discussing Martin and Perez, who had been openly recording police in public - under a 2011 case involving a lawyer arrested for recording an arrest on Boston Common.
Martin and Perez argued that sometimes they felt the need to not let the cops they observed in public know they were being recorded, but that that was something they could not do because they faced arrest; that, in fact, BPD training material instructs officers they can arrest anybody they find secretly recording them, even in a public place such as the Common.
The two argued this violated their First Amendment right to "constitutionally protected information gathering," and the court agreed - as long as they did not interfere with what the police were doing at the time:
In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired. The circumstances in which such recording could be conducted from a distance or without the officers' knowledge and serve the very same interest in promoting public awareness of the conduct of law enforcement -- with all the accountability that the provision of such information promotes -- are too numerous to permit the conclusion that recording can be prohibited in all of those situations without attracting any First Amendment review.
The court added:
[A]s recent events around the nation vividly illustrate, such undetected recording can itself serve "a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs,'" and "not only aids in the uncovering of abuses . . . but also may have a salutary effect on the functioning of government more generally." Glik, 655 F.3d at 82-83 (quoting Mills, 384 U.S. at 218); cf. Fields, 862 F.3d at 359 ("Civilian video . . . fills the gaps created when police choose not to record video or withhold their footage from the public.").
The court rejected an argument by Rollins that that case was not yet "ripe" enough for judicial consideration because the two had not actually been arrested or charged for secretly recording police and that the court should only take up the case after that had happened. That, the court said, was a "problematic" solution to a First Amendment issue.
It runs headlong into the Supreme Court's consistent admonition that we avoid putting First Amendment plaintiffs to the stark choice of having their speech chilled or committing a crime. See, e.g., Babbitt, 442 U.S. at 298 ("When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.'" (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973))); Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) ("Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights.").
The court also rejected the argument the law could catch private citizens, in particular, confidential informants, on a recording:
But, we presume officers are already careful when engaging in such sensitive conversations within earshot of others, and the record offers no other details about how any such heightened caution might disrupt police practice. Thus, the record provides no support for the conclusion that Section 99 reduces interference with official police responsibilities in any meaningful way with respect to at least the mine-run of circumstances -- whether involving an arrest in a park, a roadside traffic stop, or a gathering in a foyer following a public meeting in a public building -- in which police officers may be "secretly" recorded without their consent while discharging their official functions in public spaces.
The court added:
[A]s a general matter, an individual's privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer.
In contrast to this case, in which the two activists asked for the court to rule on recording a specific set of public employees in a public setting, Project Veritas asked that the entire state law be ruled unconstitutional so that it could secretly record pretty much anyone anywhere in Massachusetts, but in particular any "government officials discharging their duties in public spaces."
That is a request the court found simply way too broad and hypothetical to allow a judicial reckoning of how to balance the First Amendment with legitimate privacy concerns.
As an example, the court said there's a difference between police officers making an arrest on the Common and a public school teacher - also a public employee - taking a class on a field trip to a park.
In their present state, they ask us to engage in an inquiry into sensitive and difficult First Amendment issues -- concerning both privacy in public and government accountability -- that is too likely to be a hypothetical one, given the disconnect between the organization's concrete allegations regarding its intentions and the breadth of the relief it seeks.
The court dismissed Project Veritas's suit without prejudice, which means the group could try again with a more limited set of potentially prohibited practices.