A motorcyclist pulled over for speeding in Maryland uses his helmet camera to videotape an officer threatening him with a gun. State police later confiscate his cameras, computers and hard drives and charge him with a felony. A bystander records an arrest in Massachusetts with his cellphone and is promptly arrested himself.
These two incidents three years apart spotlighted a trend by local law enforcement to use state wiretap laws against people who record police actions, even as the police themselves make widespread use of dashboard cameras to record citizens. The claim is that the citizen recordings in some states violate the law because they capture audio without the consent of both parties.
The Maryland case eventually was thrown out by the state attorney general. Now, an appeals court has ruled in the Massachusetts case that the First Amendment “unambiguously” protects the right of citizens to videotape police officers performing their duties in a public space, according to attorneys Kathleen Kirby and Maria Mullarkey of the law firm Wiley Rein:
The court cited precedent firmly establishing that videotaping of public officials is an exercise of First Amendment liberties and observed that gathering information on government officials protects free discussion of government affairs, aids in the uncovering of abuses, and promotes effective functioning of government. Although the right to film is subject to reasonable time, place and manner restrictions, the court opined that the peaceful recording of an arrest in a public space that does not interfere with police duties is not reasonably subject to limitation.
That’s good news for journalists and news organizations, who can’t be everywhere but who can and do use video captured by citizens in covering the news. But the appeals court victory in the Massachusetts case brought by the American Civil Liberties Union is just one step forward. Other cases are still pending. Just last week, the ACLU filed suit in Maryland on behalf of a man who says his camera was confiscated after he videotaped an arrest.
Maryland and Massachusetts are two of the 12 states that generally require the consent of all parties to record a conversation. The others are California, Connecticut, Florida, Illinois, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington. But in almost all of these states, the Huffington Post points out, “in order for someone to be prosecuted for recording a conversation, the offended party must have had a reasonable expectation that the conversation was private.” Generally speaking, police officers carrying out their duties in public don’t have an expectation of privacy. Consult the Reporters Committee for Freedom of the Press guide, Can We Tape?, for details on state laws. And stay tuned. This issue is likely to come up again.
