The First Amendment protects the freedom of speech and press—liberties that include the right to disseminate certain information concerning governmental activities, including police work. A police officer may defend against a claim of violating a citizen’s constitutionally protected right to gather and disseminate information by invoking the doctrine of qualified immunity. Qualified immunity requires the government official to prove the constitutional right allegedly infringed upon was not clearly established at the time of the challenged conduct. In Glik v. Cunniffe, the Court of Appeals for the First Circuit addressed the existence of a constitutional right to film officers discharging their duty in public and assessed whether that right was clearly established at the time Glik did so. The court held that the First Circuit case law clearly establishes a First Amendment right to record public police activity, and therefore the police officers could not invoke the qualified-immunity doctrine.
As he passed the Boston Common—the oldest public park in the country—on October 1, 2007, Simon Glik witnessed three police officers arresting an individual. After hearing one bystander say to the officers, “You are hurting him, stop,” Glik began recording the arrest with his cell phone camera. After the officers handcuffed the suspect, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik responded: “I am recording this. I saw you punch him.” After the officers confirmed with Glik that his recording captured sound, the officers arrested Glik for unlawful audio recording in violation of Massachusetts’s wiretap statute. While detained at the South Boston police station, officers confiscated Glik’s cell phone and a computer flash drive as evidence.
The District Attorney charged Glik with violating the wiretap statute, disturbing the peace, and aiding the escape of a prisoner. After the Commonwealth voluntarily dismissed the charge of aiding in the escape of a prisoner, the Boston Municipal Court, in February 2008, granted Glik’s motion to dismiss the final two charges: disturbing the peace, and violating the wiretap statute. The judge found that Glik’s exercise of his First Amendment right to film police did not disturb the peace, noting the officers’ dislike of Glik’s recording did not make this constitutionally protected activity unlawful. The judge also dismissed the wiretap charge for lack of probable cause because the statute requires a secret recording and the officers admitted Glik had recorded openly and in plain view. . .