First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops.

Friday, August 26th, 2011

This is great. (PDF) Here’s what happened:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.

After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer1 then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

The charges were dropped. But Glik sued for violations of his civil rights. The First Circuit ruled today that the officers are not protected by qualified immunity. From the ruling:

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. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”…

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.”

The First Amendment right to gather news is, as the 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….

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

A couple things, here. First, it’s a pleasant surprise to see a ruling this clear and forceful in a civil rights/qualified immunity ruling, as opposed to a challenge to a criminal conviction. The opinion not only states that there’s a First Amendment right to record cops, but that said right is firmly established, and that the cops should have known that it’s firmly established. That’s about as complete a repudiation of Glik’s arrest as he could have hoped for.

Second, while I’ve only had time to quickly read the opinion online, I do find some possible cause for concern. From what I can tell, the opinion doesn’t strike down the wiretapping law, or even its application in the context of recording cops, so much as find that Glik wasn’t in violation of the law.  The opinion’s discussion of Glik’s Fourth Amendment rights, for example, spends a lot of time pointing out that Glik was clearly recording the cops openly, while the Massachusetts law only bars the surreptitious recording of cops. It would have been nice for the court to come right out and say either way whether the Massachusetts law itself passes First Amendment muster. But it didn’t, I guess because it didn’t need to. The opinion says Glik clearly wasn’t violating the statute, which means his arrest was a clear violation of his rights. If he had been recording secretly, and were arrested for that, I’d imagine the cops probably would have been granted immunity. Though even then, unless Glik was challenging an actual conviction as well, the court still wouldn’t necessarily need to uphold or strike down the law itself.

The strong language in the portion of the ruling pertaining to the First Amendment claim suggests that the court might strike down the law if given the opportunity. But it’s at least a tiny bit worrisome that the opinion doesn’t go to the trouble of coming right out and saying as much in the next section. A more thorough repudiation of the law would have been preferable for a couple reasons. First and foremost because I think the First Amendment protects the right to surreptitiously record on-duty cops. If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. Second, if the Massachusetts law is upheld, it’s going to create disputes about what constitutes plain sight, what is surreptitious, and whether a jury should believe the cop’s or the citizen’s account of where the camera was held while it was recording.

Not to be a complete downer on what is really a pretty great decision, but the other thing to keep in mind is that the current Supreme Court lineup is awfully fond of qualified immunity. It’s far from clear that they’d uphold this ruling. I do imagine that they will address the issue fairly soon. It will be interesting to see if that comes in the form of a challenge to an actual conviction, or in a civil rights claim for wrongful arrest.

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64 Responses to “First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops.”

  1. #1 |  Tolly | 

    True – let’s be happy reading a judicial decision that sticks up for individual citizen rights in the midst of all the overwhelming over-exertion of authority these days. That’s really bluntly clear-headed and poetic:

    “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.”

    So does this likewise apply to say, fatal beatings, taxi-medallion meetings or public townhall meetings? I’d say so.

  2. #2 |  CyniCAl | 

    Have no fear, in due time, Justice Kennedy will do the wrong thing.

  3. #3 |  perlhaqr | 

    Did you just post something happy-making? Weird. ;)

  4. #4 |  John P. | 

    This is slowly coming to a head, it will be before the USSC most likely within 2 to 5 years and as this court has ruled, the Constitution is clear.

  5. #5 |  Achtung Coma Baby | 

    Off-Topic: PZ Myers agrees with Sam Harris that libertarians are selfish, evil idiots.

    http://freethoughtblogs.com/pharyngula/2011/08/26/tax-the-rich/

  6. #6 |  Whim | 

    The police really, really do not like to be video and audio recorded. That has been amply demonstrated in countless encounters between citizen-reporters, and the police.

    The police instead like it like it’s been for hundreds of years:

    Their word against those of a dead man.

    The small digital recorder and camera phone have totally changed the power equation between the two: What has been the historical presumption of police omnipotence, and the safety of the public.

    What you can now expect as a police countermeasure is the wholesale adoption by police departments all across America of the cell phone jammer.

    Invented to assist our military in Iraq to disrupt the explosion of IED’s by cellphone detonators, the police can be expected to have these installed in every police car to prevent the public from communicating via cell phone or the Internet in the event of a police encounter.

  7. #7 |  Greg | 

    This decision made my day.

  8. #8 |  C. S. P. Schofield | 

    Whim,

    It isn’t just the Cops. The Cops couldn’t persuade the Prosecutors to do anything this silly if it didn’t fit the Prosecutors’ prejudices too. Statists just HATE it when the Peasants start acting like they are real people. That’s ALL Statists, whether it’s trendy Liberal Intellectual Twit anti-smokers and anti-fast food buttinskis, or Cops dealing with an increasingly wired-in public. Or, for that matter, Pro-Choice activists confronted with the sincere beliefs of Pro-Life protesters.

    The message always boils down to; “How DARE you question the actions of your betters! We have WAYS to deal with troublemakers!”

  9. #9 |  John Jenkins | 

    Two things:

    (1) I’ve read some Sam Harris and he is the world’s greatest at assuming something to be true, then drawing conclusions based on his assumptions, so take his opinions with a rather large serving of NaCl (and I am an outright atheist myself, so there’s no religious bias here). I’ve found PZ Meyers to be in the same boat. It’s amazing how many people think that atheism necessarily implies certain moral or political beliefs, when it really has nothing to say about either (other than the obvious repudiation of divine right rule, etc.). If you have to go out of the way to tell people what a free thinker you are…then you’re not.

    (2) Federal courts as a rule decide cases on the narrowest grounds possible and, if at all possible, avoid reaching constitutional issues:

    The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

    Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

  10. #10 |  Ariel | 

    I would, for once, like to see a group of jurists actually say that “freedom of the press” meant the right to use the technology of the time, the printing press, to disseminate tracts, pamphlets, and newspapers. The logical extension of that concept is the computer with printer and blogs. We all have “freedom of the press”. That courts interpreted this stupidly, creating a special class with “freedom of the press”, has no standing.

    This is the quote I live by on this subject: “During the 18th century, pamphleteers such as Thomas Paine were subject to persecution for publishing unpopular opinions. The freedom of press clause makes it clear that the First Amendment is meant to protect not only freedom to speak, but also freedom to publish and distribute speech.” It is that simple. No press card needed.

    So long as they continue to attribute that right near solely (I’ll grant it has been getting better) to journalists and newspapers, our rights are still abridged. The Crown loved to confiscate the technology of the time.

    Otherwise, a good decision.

  11. #11 |  Kukulkan | 

    I don’t share your concerns regarding the opinion Radley. This one is pure win. The issue of the validity of the oral intercept law was not at issue. The issue was whether the police officer defendants were entitled to qualified immunity on Glik’s First and Fourth Amendment claims. The officer argued that they had probable cause to seize Glik’s phone and memory card based on the intercept law which only applies to secret recordings. Since Glik’s recording was obvious, the law was wholly inapplicable to the situation and provided no support. Accordingly, in order to reach the validity of the intercept statute, the court would have had to address an issue not raised by the case before it. The court’s failure to address an inapplicable issue is certainly not a cause for concern. Again, this was pure win.

  12. #12 |  Kukulkan | 

    Umm, Ariel. The court here expressly and repeatedly observed that the First Amendment’s aegis extends beyond the professional press and that the wisdom of this approach is demonstrated by the prevalence of modern recording devices and the ability of bloggers to break news stories.

  13. #13 |  Ariel | 

    John J. #9,

    Atheism is one thing only: a belief, reasoned or innate, that no gods exist. After that it’s a free-for-all.

    P.Z. Myers is a good example of a dogmatic and irrational atheist. Either you believe as he does or you are ________. Fill in the blank, any epithet works.

  14. #14 |  Kukulkan | 

    Favorite quote:

    Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.

  15. #15 |  John Jenkins | 

    Okay, having read the opinion, Radley, I think you’re misreading it. This is an interlocutory appeal, therefore the only issue before the court is whether qualified immunity applies because if it does apply, then the case is over. See Hunter v. Bryant, 502 U.S. 224 (1991). The constitutional issue of the validity of the statute is not ripe for decision.

    Nonetheless, the court has clearly stated that there is a First Amendment right to record police officers in a public place, and that right is clearly established (at least in the First Circuit). Just because that is true does not mean that the statute is constitutionally infirm, however. Since there are constitutional applications of the statute (because the statute is limited by its terms to secret recordings), a court would not strike it down as a whole, but would instead find that its application in this case is unconstitutional, or even outside the ambit of the statute altogether.

  16. #16 |  Ariel | 

    Kukulkan #12,

    I agree, that’s why I parenthetically wrote it’s getting better. But even this decision did not explicitly recognize and uphold that “the Press” is a tool for disseminating speech not a group. It is always muddled. As exampled in the above: “the public’s right of access to information is coextensive with that of the press….”. See the usage?

    However, you will still find: LEO’s barring anyone from a scene who doesn’t have “credentials” (so you’ll need to show you work for a recognized blog site, another extension of the confusion); Jurists who will use “freedom of the Press” and the established news media interchangeably as above; and state laws giving preference to journalist/news media. Try protecting your sources if you write a news blog (doesn’t work well for journalists either, but they are at least recognized as having some right to do that for the public good).

    It comes from the consolidation of the technology into the hands of a few (the press was the only technology well into the 20th Century) and the confusion with the term “Press” when newspaper journalists where called “the Press”.

    “Freedom of the Press” was an extension of speech by recognizing the technology of the times. If clearly and unequivocally stated that the Press is the technology, then all of these issues will wither.

  17. #17 |  EH | 

    This is the sound of police union lawyers trying to find a loophole in the law that can be made to say that recording officers be an arrestible offense.

  18. #18 |  Mario | 

    Ariel @ #12

    even this decision did not explicitly recognize and uphold that “the Press” is a tool for disseminating speech not a group. It is always muddled.

    I think that you will be happy to know that the U.S. Supreme Court in “Lovell v. City of Griffin, 303 U.S. 444 (1938)” stated the following concerning just what the First Amendment means by “the press”:

    The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.

    In contrast to what the modern statists would have us think, “the press” has nothing to do with who is and who is not a “journalist.”

  19. #19 |  MassHole | 

    Hell yeah! I’ll take some good news on a friday night. Cheers.

  20. #20 |  Ben | 

    Wow, absolutely amazing. I’ll take that as far as appellate-level decisions go on civil rights matters. Yes, it could have gone further, but let’s at least celebrate the small victories too.

    On an unrelated note, I knew Simon pretty well several years ago, he was the valedictorian in my law school class. He was a extremely talented law student, and a very nice and thoughtful guy. Good to see him fighting the good fight.

  21. #21 |  Ariel | 

    Mario #18,

    I thank you for that. Yet, you still see confusion in so many judicial decisions. Perhaps they missed it?

  22. #22 |  Ariel | 

    Mario #18,
    “In contrast to what the modern statists would have us think, “the press” has nothing to do with who is and who is not a “journalist.””

    Dead on and why I bristle. This goes back over 40 years when in Civics class I realized that, even though the teacher explained the reason for “freedom of the Press”, he still wove the Press (journalists of newspaper, radio, and TV) and that freedom as if the same cloth. Effectively destroying his explanation of why that freedom in the 1st Amendment. It’s a technology not a group.

  23. #23 |  Achtung Coma Baby | 

    To wrap-up my off-topic sub-thread, I present to you my favorite Pharyngula quote, hands-down.

    While we are talking about libertarian atheists, did anyone see Penn Jillette on Piers Morgan the other night propose that the way to deal with the fact that 1 out of 7 Americans are using food stamps is to remember that “that’s 6 Americans able to help them!”, (or something to that extent)? Ie, the government shouldn’t help them; Good Old Fashioned Charity will do the trick. You know, because that really worked in the nineteenth century.

    I love Penn, but it is hard for me to see atheists who place such an emphasis on being reality-based make statements that, to me, suggest they are completely delusional when it comes to social reality. Anyone want to try to explain this to me?

  24. #24 |  JS | 

    So what happens if police ignore the ruling and go ahead and beat and arrest people and take their cell phones anyway?

  25. #25 |  EH | 

    JS: we’re that much closer to them not being allowed to forget. Of course, we still live in a country where suspects still get plunger handles shoved up their backsides by police, but its now easier for officers to lose qualified immunity when they do either. Qualified immunity is the lynchpin for police behavior.

  26. #26 |  dad29 | 

    As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

    Which, by the way, also covers flashing one’s lights to warn traffic about speed traps per a Kentucky case about 10 (??) years ago.

  27. #27 |  Jim March | 

    Technologically speaking, the other shoe hasn’t dropped yet. It’s about to, literally any day now: the ability to stream video remotely to a server 1,000+ miles away, that only you know the password to, from a COVERT camera.

    That particular tech has never been available in consumer-level gear. It’s about to ship as a software add-on to the Looxcie camcorder:

    http://www.looxcie.com/

    http://www.looxcie.com/index.php/streaming/looxcielive

    The Looxcie is a complete camera disguised as a bluetooth phone headset (aka “Borg implant”). It still works as one, but it’s also a complete camcorder. It passes data to an Android or Apple smartphone over bluetooth, which in turn can re-broadcast it over the cellular network. A 4G connection on an Android phone is recommended for best results.

    So, what happens when some activist films the cops with an open, ordinary camera, and has one of these as a concealed backup? Let’s say we pull this trick in MA. Let’s further assume a cop confiscates or outright smashes the overt camera. Legal question: the cop knew he was being filmed right up until he committed a crime, so, did he legally gain the right not to be secretly recorded by said criminal action? Yeah, I don’t think so! So he’s busted committing the first crime, and odds are he’s also going to be filmed either mouthing off in a major way, or doing a false arrest, or outright assaulting somebody. What happens then? Well somebody collects some friggin’ major coin, that’s what!

    As that kind of broadcasting covert cameras get smaller, they’re going to have a massive impact on all kinds of stuff, including (eventually) exposing God knows what weird crap once they hit the “grain of rice” size range.

    The Looxcie appears to be the very first of this breed, if they can get the “LooxcieLive” streaming app working. It’ll be a pain, probably pretty low-res given the bandwidth limits of Bluetooth 2.1. They really need to rig the camera for WiFi broadcasting to a smartphone rigged as a mobile hot-spot to a cellular 4G or better connection, which would solve the bandwidth issues and then some.

    But Looxcie or otherwise, this is coming and the pigs ain’t seen ‘nuthin yet :).

  28. #28 |  JS | 

    Thank EH, that was a good answer. I’ve been reading this blog for about 3 years now and there’s been so much bad news and everything seems to have gotten worse it’s almost hard to believe anything could get better.

  29. #29 |  JS | 

    Ariel #10, great post!

  30. #30 |  DoubleU | 

    Does the above ruling apply to all states or just this incident or just Massachusetts?

  31. #31 |  Pat | 

    Seems the secrecy element of the MA wiretapping law only matters to the 4th Amdt. claim, not to the 1st Amdt. claim. Because the recording was open, the cops had no probable cause to arrest the photographer — for violation of a law requiring secret recording — and the 4th Amdt. claim survives.

    Independently, the arrest of a person on these facts, secrecy or not, also violates their 1st Amdt. rights, so that 1983 claim survives 12(b)(6) too. Money quote: “Such peaceful recording of an arrest in a public space that does not interfere with the police officers’ performance of their duties is not reasonably subject to limitation.” Seems like if a recording of cops performing their duties is (1) peacefully done, (2) in a public space, and (3) does not interfere with performance of police duties, we’re protected by the 1st, subject to reasonable time, place and manner restrictions. That’s a lot better than the law in, say, Illinois.

  32. #32 |  twency | 

    “Does the above ruling apply to all states or just this incident or just Massachusetts?”

    I’m not a lawyer, but I believe the answer is that it would only be binding precedent in the First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), but could be cited in support of a claim in another circuit.

  33. #33 |  Lior | 

    (IANAL either)

    The 1st Amendment part (whether there’s a 1st Amendment right to record cops, and whether the right was “clearly established” for q.i. purposes) ought to be binding precedent in the 1st circuit.

    The 4th Amendment part (whether there was probable cause to arrest Glik etc) is specific to Massachusetts. Here, the question was whether what Gilks was doing could conceivably have violated the particular State Law that he was arrested for violating. The court ruled that there’s no way that was possible, and therefore the arrest violated the 4th Amendment. But other states in the circuit surely have different wiretap laws, so the ruling will not directly apply to them.

  34. #34 |  1st Circuit: A Clearly Established First Amendment Right to Film Officers In A Public Space (This Is A Big Deal) Part I » righttorecord.org | 

    […] Radley Balko asks this question on his blog, so I imagine some other folks are wondering the same thing. The legal issue here was not if the statute was valid. That’s a bigger question than what the court had in front of it. Court’s can’t reach out and rule on whatever they want–they can only rule on a case or controversy in front of the court. The court can’t act like a legislature and decide it doesn’t like a law. A court can only strike down a law when it has to. […]

  35. #35 |  Buddy Hinton | 

    A couple things, here. First, it’s a pleasant surprise to see a ruling this clear and forceful in a civil rights/qualified immunity ruling, as opposed to a challenge to a criminal conviction.

    Yup. The Exclusionary Rule is a terrible thing for Fourth Amendment rights. Time to get rid of it. It seems like you are beginning to get it on this point.

  36. #36 |  This Is The Police: Put Down Your Camera « Don Surber | 

    […] decision itself is here. Hat tip: The Agitator. Headline shamelessly stolen from […]

  37. #37 |  Mario Cerame | 

    Radley, the court couldn’t invalidate the law because that wasn’t before the court. This was a civil rights suit. As you sau, one way to strike the law down would be in a criminal suit–but here charges were dropped, which makes that impossible.

    The ACLU v. Alvarez case is using a declaratory judgment strategy to start in federal court.

    My legal take on the opinion is here:

    http://www.righttorecord.org/?p=448

  38. #38 |  Radley Balko | 

    The Exclusionary Rule is a terrible thing for Fourth Amendment rights. Time to get rid of it. It seems like you are beginning to get it on this point.

    What in the world are you talking about? I’m not “beginning to get it.” This ruling isn’t an invalidation of the Exclusionary Rule at all.

  39. #39 |  Don Duncan | 

    How can the individual be denied the right to secretly video anyone in public if the state does it routinely? Is it not common practice for various gov agencies to video from satellite without warrant? It is not stated by gov that when one is in public no expectation of privacy exists? The gov can have no “rights”. It only has permissions based on individual rights. Also, the term “individual rights” is redundant because there is not such thing as group rights.

  40. #40 |  DB | 

    A more interesting question might be: Does intent matter?

    If the individual declared that he WAS a member of the press and INTENDED to publish the video, would the case for first amendment protection been more clear?

    With open access to publishing tools, isn’t EVERYONE with a blog or utube/gmail account a member of the press?

    From the wikipedia page for “Freedom of the press in the United States”:
    “In Lovell v. City of Griffin, Chief Justice Hughes defined the press as, “every sort of publication which affords a vehicle of information and opinion.”[1]”

    As long as he meant to publish the information (as opposed to blackmail the police department or arresting officers) it should be protected.

  41. #41 |  m.lee | 

    to #39 “‘because there is not such thing as group rights.” Gay marriage?

  42. #42 |  JS | 

    Don Duncan “How can the individual be denied the right to secretly video anyone in public if the state does it routinely?”

    Because they know what’s best for us. You just don’t understand-when WE do it it’s wrong. When THEY do it it’s different. I knwo this because Mike Huckabee says every week that we live in the freest country in the world. Sometimes he even brings Toby Keith on to sing about how free we are.

  43. #43 |  supercat | 

    #27 | Jim March | “Legal question: the cop knew he was being filmed right up until he committed a crime, so, did he legally gain the right not to be secretly recorded by said criminal action? Yeah, I don’t think so!”

    A more significant aspect of what you describe is that, IIRC, some states explicitly permit the covert recording of crimes by police officers, but a mere belief that a cop might commit a crime is insufficient to justify recording. If there is an openly-displayed camera, the cop should know he’s being recorded, so the recording isn’t really “covert”. If the cop were to smash the camera, the remaining recording would be covert, but it would also be statutorially-protected evidence of criminal activity by police.

  44. #44 |  YosserHughes | 

    For those who are unaware, there is a neat little free app for Android and iphones called [Qik](http://qik.com/), when you record a video it’s immediately stored on a website under your own account, unsername and password protected, so even if your phone is confiscated the video is safetly stored on the website for you to download or share.

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  47. #47 |  George McDermott | 

    This is a victory for victims of abuse not only by police officers but of abuse by judicial personnel recorded in court proceedings acting outside of their oath of office and rule of law of this nation. As someone who reports on fraud in the courts and secretjustice.com and Mdcourtwatch.com. I have had US marshals on several occasions confiscate my camera while videotaping on public sidewalks in front of courthouses. See secretjustice.com programs. 195 222 and 339 also the Atty. Gen. of Maryland is trying to wrongfully prosecute a citizen for website at program 326 and 328. I will keep chronicling corruption as long as I can program 318 deftly shows sheriffs officers acting outside of their oath of office. Overseeing a sham eviction follow-up story program 333 through 336.
    Wake up America this happened to you.

  48. #48 |  US District Court Supports Recording Public Servants, Especially Law Enforcers | 

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  49. #49 |  twency | 

    @ #40 DB

    You asked: “A more interesting question might be: Does intent matter? If the individual declared that he WAS a member of the press and INTENDED to publish the video, would the case for first amendment protection been more clear?”

    The decision answers your question. Intent doesn’t matter, because everyone has the same right of access to information as the news media.

    From the decision: ‎”The First Amendment right to gather news is, as the 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.”

  50. #50 |  Other Posts on the Lipez Opinion and Glik Case » righttorecord.org | 

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  51. #51 |  First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops. | The Agitator | Dave Thompson Photography | 

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  52. #52 |  Buddy Hinton | 

    This ruling isn’t an invalidation of the Exclusionary Rule at all.

    Never said it was. The case is a wonderful counterpoint to the Exclusionary Rule cases that eat away at the same 4A rights that this case bolsters. No case is an island.

  53. #53 |  Zack | 

    I stumbled on this site as I wandered the web-desert. This thread is an oasis of civilized, decent and dare I say learned discourse.

    The court has ruled that Glik was clearly wronged, a great decision for the citizenry. But what if Glik’s (or the next videographer’s) motives weren’t honest? No mention is given of whether the officers were actually engaged in unnecessary force in dealing with the original situation. It is entirely possible that what was recorded was an incomplete testament to the entire affair, subject to biased editing, etc. Antagonize a cop until he slugs you while your buddy streams the juicy bits. Suspension, lawsuits, loss of pension, future employment as a security guard, is that what society wants to be foremost in the cop’s mind? Constant fear of the public or administrative retribution will make them unlikely to act at all. Who then deals, not with the Gliks of the world but with the real baddies?

  54. #54 |  Union Leader: Court tells police to let the public videotape | 

    […] Radley Balko has this take on why one might not want to tell law enforcers that they are being recorded:  If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. […]

  55. #55 |  NewsFerret Tech » Blog Archive » Judge worries recording police will lead to excessive "snooping around" | 

    […] month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. That case held that Glik had a “clearly-established” First […]

  56. #56 |  P2PTalk » Judge worries recording police will lead to excessive "snooping around" | 

    […] month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. That case held that Glik had a “clearly-established” First […]

  57. #57 |  Judge worries recording police will lead to excessive"snooping around" « Technology | 

    […] month, the United States Court of Appeals for the First Circuit handed down aunanimous rulingin theSimon Glik case.That case held that Glik had a”clearly-established”First Amendment […]

  58. #58 |  Judge worries recording police will lead to excessive "snooping around" – Information Technology Leader | 

    […] month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. That case held that Glik had a “clearly-established” First […]

  59. #59 |  Judge worries recording police will lead to excessive "snooping around" | Greediocracy | 

    […] month, the United States Court of Appeals for the First Circuit handed down a unanimous ruling in the Simon Glik case. That case held that Glik had a “clearly-established” First […]

  60. #60 |  The Right to Keep and Bear Cameras | STATESMAN SENTINEL | 

    […] surprisingly enough, are getting it right.  Last month, the First U.S. Circuit Court of Appeals ruled that a man who had recorded police during an arrest of a suspect (which included an officer […]

  61. #61 |  Brother Tape, Black on Clear Extra Strength, 9mm (TZeS121) | Tag4Shop | 

    […] First Circuit Panel Says There's a Clear Constitutional Right To … Tags: Black, Brother, Clear, Extra, Strength, Tape, TZeS121 « PreviousTAG Heuer Men’s CV2010.FC6233 Carrera Automatic Chronograph Watch […]

  62. #62 |  First Circuit Panel Says There’s a Clear Constitutional Right To Openly Record Cops | TaJnB | TheAverageJoeNewsBlogg | 

    […] The Agitator August 28, 2011 […]

  63. #63 |  The Right to Keep and Bear Cameras | Cop Block | 

    […] surprisingly enough, are getting it right. Last month, the First U.S. Circuit Court of Appeals ruled that a man who had recorded police during an arrest of a suspect (which included an officer […]

  64. #64 |  Union Leader: Court tells police to let the public videotape | Talley.TV | 

    […] Radley Balko has this take on why one might not want to tell law enforcers that they are being recorded:  If you’re recording a cop beating the hell out of someone, it isn’t difficult to see why there might be some problems with a law that requires you to make it obvious to the cop that you’re doing so. […]

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