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Videotaping police in the course of their duties is “unambiguously” a free speech right protected under the First Amendment, the U.S. Court of Appeals for the 1st Circuit held in a recent decision. The appeals court, in an opinion released Aug. 26, rejected the argument that police officers who arrested such videographers should be granted immunity against litigation. The underlying case involves a Massachusetts lawyer, Simon Glik, who sued the city of Boston and three local police officers alleging violations of his First and Fourth Amendment rights after he was arrested for filming police activity with his cellphone. Glik was walking past Boston Common in 2007 when he spotted three police officers making an arrest. The officers saw Glik filming the arrest using his cellphone and placed him under arrest, later charging him with violating the Massachusetts Wiretap Act, disturbing the peace and aiding in the escape of a prisoner. The case was eventually dropped, and Glik filed suit. The city of Boston and the police officers moved to dismiss the case, arguing that they were subject to immunity because there was no clear First Amendment right to film police using a cellphone video camera. They also argued that they didn’t violate Glik’s Fourth Amendment right because they had reason to believe he had violated the state’s wiretap law. Judge William Young of the U.S. District Court for the District of Massachusetts denied the motion to dismiss, prompting an immediate appeal by the city of Boston and the officers. Circuit Judges Kermit Lipez, Jeffrey Howard and Juan Torruella heard oral arguments on June 8. The appellate judges found that Glik was well within the bounds of the First Amendment by filming government officials carrying out their duties in a public space. Private individuals, like members of the press, should be given wide berth to gather information on public officials, the judges wrote. “Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” they wrote. “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.” On the Fourth Amendment claim, the appeals court agreed with Young’s finding that the police had no reason at the time to believe Glik was secretly recording them in violation of the state’s wiretap law. Police admitted that they knew Glik was using his phone to capture the arrest when they confronted him, the appellate judges noted. The police claimed they thought Glik was only taking pictures, as opposed to a video and audio recording, but the appeals court found that “a straightforward reading of the statute and case law cannot support the suggestion that a recording made with a device known to record audio and held in plain view is ‘secret.’” Glik’s attorney, David Milton of the Boston-based Law Offices of Howard Friedman, said Tuesday that the ruling was a “resounding victory for the First Amendment.” “In strong language, the court affirmed that the right to videotape police officers and other public officials is protected by the First Amendment and is an essential tool of democracy,” he said. A representative in Boston’s Office of Corporation Counsel did not immediately return a request for comment on Tuesday. Zoe Tillman can be reached at [email protected].

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