BRATTLEBORO -- When the framers of the United States Constitution added the Bill of Rights to their masterwork, it’s safe to say they could never have envisioned how the document would have to be interpreted to adapt to the technology of the computer age. But the authors were insightful enough to keep much of the language of the Bill of Rights vague, as if they understood it would have to stand the test of the changing times.
Such is the case of the First Amendment, which spells out the rights of the people when it comes to freedom of speech and of the press, especially with the advent of handheld devices -- such as mobile phones and digital video recorders -- that allow the recording of anything, anywhere.
Journalists and members of the public have often found themselves on the wrong side of the law when attempting to record a public official performing his official duty in a public space. The Internet is replete with stories of people arrested and prosecuted for recording police activity, charged with breaking laws that were written prior to the proliferation of handheld recording devices.
But that’s starting to change. Earlier this week, the U.S. Supreme Court refused to hear the appeal of a decision rendered by the Court of Appeals for the Seventh Circuit, which ruled an Illinois law barring the audiotaping of public officials was unconstitutional.
Cook County State Attorney Anita Alvarez had appealed the ruling, which barred her office from prosecuting staffers of the Illinois chapter of the American Civil Liberties Union for monitoring police officers’ public actions.
"The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests," the appellate court said in its ruling, "it likely violates the First Amendment’s free speech and free press guarantees." Closer to home, a similar ruling was issued in August 2011 by the U.S. Court of Appeals for the First Circuit. In that case, the court ruled a Boston attorney, Simon Glik, who was arrested and prosecuted for using his cell phone to record police arresting a man on Boston Common in October 2001, was exercising his First Amendment rights, and his arrest violated his Fourth Amendment rights. Glik was charged with illegal wiretapping, aiding the escape of a prisoner and disturbing the peace. All the charges against Glik were eventually dismissed.
"The court’s opinion made clear that people cannot be arrested simply for documenting the actions of police officers in public," said David Milton, one of Glik’s attorneys, after the city settled a civil suit in March, resulting in an $170,000 award to Glik. The officers had asked the District Court for the District of Massachusetts to dismiss the civil suit based in part on qualified immunity, but the court declined to do so, noting "this First Amendment right publicly to record the activities of police officers on public business is established."
The qualified immunity doctrine balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction and liability when they perform their duties reasonably. In previous cases, the courts have also ruled that 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.
"Ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses ... but also may have a salutary effect on the functioning of government more generally," reaffirmed the First Circuit Court in its Glik decision.
The court also noted that the right to record has been upheld in instances of a photographer taking photos of a car accident scene, a journalist video recording a crime scene and the filming of a public official outside his home.
In addition, the First Circuit recognized the changing nature of news gathering.
"Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw," wrote the court. "The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status."
Albert "Buzz" Scherr, professor of law at UNH School of Law, said the Glik decision invalidated part of New Hampshire’s wiretapping law, which prohibits audiotaping without the consent of both parties. "If you were to call me and tape our conversation without getting my consent, that would be a violation of the state’s wiretapping statute," said Scherr.
While the wiretapping statute doesn’t prevent a video recording of an event or activity in a public space, it does prevent the audiotaping of a conversation. Up until the Glik decision, law enforcement agencies had used the wiretapping statute as a justification for arresting people who were recording a police activity with a video device.
But, according to the Glik decision, the Constitution trumps the wiretapping statute when recording police officers performing their duties in a public space, said Scherr.
A bill rewriting the wiretapping statute to reflect the Glik decision is expected to be introduced in the New Hampshire Statehouse in the 2013 legislative session.
Scherr said most police departments have already gotten the message following the Glik decision, but not all, so it’s important for people to know their rights.
"Stay out of the way, don’t give up your camera and don’t be a jerk about it, but assert your rights," said Scherr.
In March of this year, New Hampshire Attorney General Michael Delaney distributed a memorandum to police agencies around the state that referenced the Glik decision.
"I am aware that in the recent past a number of police departments have arrested individuals for audio and or video recording police officers in public engaged in official duties," wrote Delaney. But, he wrote, the court concluded "a citizen’s right to film government officials, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."
Nonetheless, he noted, the court also recognized that the right to record is not unlimited, and may be subject to reasonable time, place and manner restrictions.
"While the Glik decision leaves much unanswered in terms of when and how the right to record may be limited, it makes clear that a person has a First Amendment right to both video and audio record police officers engaged in official duties in public places such as a park, in a public meeting, or on a public street or sidewalk, provided it does not interfere with the officer’s performance of those duties," wrote Delaney. "If a person engaging in such recording activity is arrested, the arresting officer could be subject to liability for his or her actions."
Hinsdale Police Chief Todd Faulkner said he was made aware of the Glik decision by the AG’s memo and is in the process of revising his department’s policies and procedures, which include how his officers react to being recorded while conducting police business. To update his policy, he is using a draft created by the Local Government Center of New Hampshire and distributed to departments around the state.
But, insisted Faulkner, all his officers are already aware of the public’s right to record them while they are working.
"As long as that person does not interfere with whatever enforcement action is being taken, stays away from the officer, doesn’t put anyone in danger and doesn’t interfere, I tell my officers not to engage with that person," said Faulkner. "But if that person creates a safety risk or is interfering, they are subject to arrest."
He said he welcomes the use of recording devices by his officers and by the public at large.
"Studies have shown that people who know they are being recorded, whether police or the general public, behavior tends to be that much better," said Faulkner.
Walpole Police Chief Mike Paquette said he advises his officers to not worry if they are being recorded.
"If you are being professional, what does it matter?" he asked, adding a police officer or a member of the public shouldn’t have to be on their best behavior only when they are being recorded.
"What are you doing when nobody is looking? Are you still that good person?"
"The Free Keene" movement
Chesterfield Police Chief Lester Fairbanks said his department has learned a lot by observing the actions of the people who make up the "Free Keene" movement.
The members of the Free Keene movement describe themselves as "liberty minded activists, visionaries and media personalities," many of whom have moved to the Granite State as part of the "Free State Project," which has been described as an effort to build a "libertarian beachhead" in New Hampshire.
They have been asserting their First Amendment right to film public officials and court proceedings, which has resulted in arrests.
Fairbanks said his department reviews recordings on Free Keene’s website "to rethink how we deal with people."
However, he said, his officers have to be trained to evaluate a changing situation.
"My concern is some people push and continue to push and interfere," said Fairbanks.
Vermont is a one-party consent state, which means you could be recorded without your knowledge or your permission, said Allen Gilbert, the executive director of the ACLU of Vermont. Because of that, said Gilbert, most police in Vermont know the public has the right to record the activity of public officials in a public space.
"They know that you have the right to have a camera, to take pictures and to make a recording," he said.
"People are free to tape us in public places where there would be no expectation of privacy whether engaged in duty activity or not," said Capt. Ray Keefe, Vermont State Police Troop "D" Commander, who is in charge of the barracks in Royalton, Rockingham and Brattleboro.
Despite the clarity that resulted from the First Circuit and Seventh Circuit decisions, Scherr said there is still some case law that needs to be developed. That includes whether a distinction needs to be drawn between a public employee and a public official.
The definition of a public official is quite broad, said Scherr, and includes people who volunteer to run polling stations during elections, but does it also apply to a member of a town’s road crew?
What is clear is if someone is in a public space anywhere in the country, you can take pictures of them, whether that’s a still or a video recording. That’s the message of the "Photography is not a Crime" movement, which is encouraging professional and citizen journalists, and just regular people, to know what their rights are and to stand up for those rights.