The Right To Record blog has some good analysis of yesterday’s 1st Circuit decision, including what it might mean for ACLU v. Alvarez, which the Seventh Circuit will hear next month, and a rebuttal of my concerns about the Glik opinion stopping short of striking down the applicable portion of the Massachusetts eavesdropping law.
I found this bit particularly interesting:
Curiously, Lisa Skehill Maki, the author of the brief for the City of Boston, wrote her student note on how the Massachusetts law was wrong. Lisa A. Skehill, Cloaking Police Misconduct in Privacy: Why the Massachusetts Anti-Wiretapping Statute Should Allow for the Surreptitious Recording of Police Officers, 42 Suffolk U. L. Rev. 981 (2009). This ironically makes her very qualified to defend that law. Additionally, her note briefly mentions the Glik case when it was still at the criminal stage. Id. at 1006.
Her brief is useful for practitioners. There are not many good briefs on this issue from municipalities–and some are plain baffling. Maki’s brief is very well done–she catches one case I overlooked, Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009). This brief is a good study for practitioners to see what a competent brief against a a clearly established right to record might look like.
You could probably make a case that Maki’s brief for the city of Boston and her student note aren’t entirely contradictory. Her note argues that there should be a First Amendment right to record on-duty cops, while her brief (mostly) argues that the police should be protected by qualified immunity because that right has not been clearly established. Still, she’s essentially arguing for the preservation of a law that two years ago she argued was used to cloak police misconduct.
Also, every time I refer to this case I’m going to think of this.
MORE: Carlos Miller has a roundup of items related to the decision, including details on some new arrests and charges, including in Massachusetts.