First Amendment Rights: New Ruling on Recording Police

Your First Amendment Rights New rulings states you cant get arrested for videotaping police, politicians, and other government officials. Youve read many stories right here in Videomaker and other publications about someone with a camcorder witnessing a confrontation with police and these witnesses holding that camcorder do what anyone would they record the act. They might not know what or why the confrontation is about, but by recording the action, in some cities or states, they were considered accessories to a crime or participating in criminal activity.

Some states, such as Massachusetts, would use a wire-tapping ruling against the camcorder user as an excuse to confiscate the camcorder and arrest the user. Not anymore. A Federal court has ruled in favor of videographers. Americans with recording devices are now protected under the First Amendment to record public officials doing their jobs in a public arena.

Whether its a cop getting aggressive during an arrest or a congressman entering a bordello, if the act is in a public area – they might not like it – but theyre fair game to cameras rolling. You may recall the story of Simon Glik in Boston, who stumbled across an arrest in progress in a public park. He videotaped the officers as they were arresting a man, but as soon as one of the officers noticed that Glik was recording the process, Glik was arrested. Not for shooting video, but for recording audio, because he was in violation of Massachusetts wiretap law. Glik was charged with wiretapping. But he was later found not guilty by the Boston Municipal Court, because his recording device wasnt concealed. So he filed a civil rights violation suit. The police claimed he was in violation of something called qualified immunity, which is supposed to protect them from being harassed while doing their job.

The U.S. District denied their claim and the police filed an appeal, which lead to the important ruling. An excerpt from the August 26, 2011 Appeal From the United States District Court for the District of Massachusetts ruling, states: "In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik's constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm."

This is fascinating text; you should read the entire ruling. It spells out how Glik heard what he thought was excessive behavior from the police so he started recording the action, how when challenged he responded that he was concerned for the mans well-being. And when he was arrested, and then cleared, he tried to file a complaint with Bostons internal affairs and was ignored. What weve gained here is that public officials cant bully us into not recording what we see. For instance an innocent bystander doesnt have to make the decision to not get involved when he stumbles upon an action that appears someones rights are being violated or a public official is breaking the law.

What this gives videographers – and ordinary citizens with a cell phone alike – is protection against being considered a criminal for being a witness to an event good or bad that takes place on public property or while the witness is on public property. One might argue that the problem with a confrontation being recorded by the witness who stumbles upon the event is that it could be similar to walking into a movie already in progress. The recorded images dont show what led up to the event, only that frozen moment in time. But then again, an eyewitness without a recording device might be in the same situation. I saw a man running; I saw other men in uniform take him down however, recorded witness is usually more accurate than an eye witness, who could be confused by whats going on at the time, and his/her brain might not assemble all points to the puzzle immediately. An eyewitness, though, isnt (usually) arrested for what he might have seen.

The camera is a non-participatory, unemotional documentarian in the purest form it sees – without prejudice – what it is focused and framed to see. Events occurring outside its screen are not considered. Whos to say that right next to that confrontation, something bigger is going on, something that could explain the scene that is being captured at the moment? Ah but thats a different idea for another time. In the United States, public officials – sort of like public domain footage- are owned by the citizens of this country. We pay their salaries through our taxes, and so some of their own personal space rights are given up when they take public office.

They know this, but as many a politician who's gotten his fingers caught in the cookie jar know, in this new world of the ubiquitous camera, if youre not doing anything wrong, you shouldnt have to worry, right? Least anyone thinks they can now record events without worry, they are wrong. There are lots of rules about public access and intent that can still land you in jail, if youre not careful.

Our Whats Legal columns by patent attorney Mark Levy explain a lot of the rules in easy-to-follow laymans terms. Check it out. And remember, you should always try to stay on the legal side of the law when you're recording in public places or anywhere, for that matter. The Center for Social Media has a great listing of code of practices in Fair Use, check it out.

Jennifer O'Rourke
Jennifer O'Rourke
Jennifer O’Rourke is an Emmy award-winning videographer & editor.

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