The United States Court of Appeals for the First Circuit [official website] Friday ruled [opinion, PDF] that there is a clearly-established First Amendment [Cornell LII backgrounder] right to film police officers performing their duties in a public space. The case stems from a 2007 incident, when police officers arrested Simon Gilk after he openly recorded three police officers arresting a suspect on the Boston Common. Circuit Judge Kermit Lipez, speaking for the unanimous three-judge panel, rejected the officers claim that they had qualified immunity since the law regarding recordings of police action is not well-settled. The opinion recognized that the undoubted right to gather news from any source, by means within the law, is an important corollary to the First Amendment saying:
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. ... 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.Lipez cited well established case law and stressed that the right to gather news is not one that inures solely to the benefit of the news media but also extends to a private individual. The Court recognized that the right to record is not without limitations and is subject to reasonable time, place, and manner restrictions. The Center for Constitutional Rights [advocacy website] filed an amicus brief [PDF] arguing that concerned individuals and Copwatch groups have a right to record the activity of police in the public.
The police officers arrested Gilk and charged him with violating of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The Commonwealth dropped the last charge recognizing that they did not have probable cause. The other two charges against Gilk were also dismissed by a Boston Municipal Court. In February 2010, Gilk filed a complaint under 42 USC § 1983 [text] for violation of Gilk's First Amendment and Fourth Amendment rights. The officers appealed to the First Circuit court after the district court denied the officers motion to dismiss the case because the officers had qualified immunity.