Massachusetts Court Hears Challenge to Public Records Law

A U.S. Court of Appeals for the First Circuit ruling on August 26, 2011, affirmed a First Amendment right to record police activity in public spaces. The decision stemmed from a case involving Simon Glik, who was arrested for recording police officers on Boston Common.

Background of the Glik Case

In 2010, Simon Glik initiated a lawsuit against three police officers and the City of Boston. The suit alleged civil rights violations following his arrest in October 2007, when he was charged with illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace for openly recording police officers interacting with another individual on Boston Common. The officers argued that there was no First Amendment right to record police or that they were protected from legal action due to a lack of clarity in the law.

First and Fourth Amendment Considerations

The court rejected the officers’ claims, establishing a First Amendment right to record police carrying out their duties in public. The court also addressed whether the officers had justification for arresting Glik under Massachusetts wiretap statute (Ch. 272, Sec. 99). This statute prohibits the secret interception or recording of oral communications without consent. Because Glik openly recorded the officers, the court determined the police lacked probable cause for the arrest, violating Glik’s Fourth Amendment rights against unlawful arrest and his First Amendment right to observe and gather information.

Subsequent Legal Action Regarding Secret Recording

The ruling did not differentiate between openly and secretly recording police, asserting that both are protected under the First Amendment. However, the Massachusetts wiretap statute distinguishes between the two, a conflict the American Civil Liberties Union of Massachusetts addressed in a 2016 federal lawsuit. This lawsuit, filed on behalf of two civil rights activists, challenges the enforcement of the Massachusetts wiretap law against individuals secretly recording police in public. The suit seeks to prevent Boston Police Department Commissioner William Evans and Suffolk County District Attorney Dan Conley from enforcing the law in such instances.