Another Go-Round with Recording the Police in Massachusetts

Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue's car at his direction, and later uploaded to YouTube.

But wait a minute -- didn't we already deal with this issue in Massachusetts? Didn't the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there's a First Amendment right to record the activities of the police in public?

The Glik decision, resounding though it certainly is, dealt with a situation in which the recording at issue was made openly, not secretly. Although the First Amendment analysis formed the heart of the First Circuit's ruling, the Court also considered Glik's Fourth Amendment rights. In that section of the decision, the Court found that Glik had adequately pleaded that the officers who arrested Glik were on notice that he was taping them. If that were true, the Court held, the officers should have known that there was no violation of Massachusetts' wiretap law, which only prohibits secret audio recordings. Thus, Glik's arrest would have violated not only his First Amendment rights but also his Fourth Amendment right against arrest without probable cause.

Which raises the question -- does all of the great First Amendment language in Glik v. Cunniffe only apply to situations in which a citizen openly records an officer's activities? The intersection of the First Amendment and secret recordings of the police was not directly before the Court in Glik, and so one could argue that Glik leaves open the possibility that secret recording could be punished in a manner consistent with the First Amendment. At the very least, I am sure that if Espinosa-Rodrigue files a Section 1983 claim against the Shrewsbury Police Department, we will see an argument that Glik did not "clearly establish" a right to record the police secretly (as would be required for the individual officers to escape liability on a qualified immunity defense).

But frankly, that argument strikes me as weak. The Court framed the question in Glik as whether Glik was exercising a First Amendment right to "film[] the officers in a public space," id. at 79, not whether the First Amendment protects "open" recordings.  Moreover, the great First Amendment language in Glik (about which I previously waxed rhapsodic) was less about whether the police know that a recording is being made than the benefits of recording the police going about their duties in public, e.g.:

• "[I]s 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." Glik at 82.
• "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United Statesand the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendmentactivity are 'sharply circumscribed.'" Id. at 84.
• "[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public spaceis a basic, vital, and well-established liberty safeguarded by the First Amendment." Id. at 85.

(Emphasis added.) The Court's First Amendment analysis does not mention, let alone turn on, whether Glik's recording was made openly or secretly. Indeed, both open and secret recording can serve the ends of public scrutiny of the police, because secret recordings reveal to the public how officers behave when they are not aware they are being watched.

Case law following Glik likewise does not restrict First Amendment protection to open recordings. After the First Circuit's decision in Glik, the Seventh Circuit issued its opinion in ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (our discussion here). Alvarez addressed similar issues regarding a "police accountability program" planned by the ACLU of Illinois, which wo