Using the First Amendment and the Media to Publicize and Strike Against Rampant Police Corruption
Walking by the Boston Common one afternoon in October 2007, Simon Glik saw three police officers forcing a young man face down on a park bench and heard a bystander say, “You’re hurting him.” Concerned that officers were using unreasonable force to arrest the man, Glik, a young lawyer, used his cell phone to film the incident from 10 feet away. After placing the suspect in handcuffs, an officer told him he’d taken enough pictures. Glik responded, “I am recording this. I saw you punch him.”
An officer asked Glik if his cell phone recorded audio. Glik said yes. The officer cuffed Glik, and arrested him on a charge of violating Massachusetts’s wiretap law, aiding in the escape of a prisoner, and disorderly conduct. They also erased some of the recording, according to news accounts. Glik was part of a trend that is riling journalists and activists.
From Georgia to Nevada, police are arresting people who are photographing or videotaping their activities from public space or their own property, seizing their equipment and erasing the images. No one keeps data on the frequency of such arrests. But a spate of high-profile incidents in several states suggests the numbers are growing.
“Nobody should stand for this,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, an Arlington, Va., based nonprofit organization that provides legal help to reporters and news organizations.
Police can arrest people who are interfering with their investigation or are committing a crime themselves, she said. “If you are throwing a rock at police officers with one hand and holding a video camera in the other, you are not protected.” But as more and more videos of confrontations surface on the Internet, it appears that in many cases the officers just don’t want to be taped.
Glik isn’t a professional journalist, but he may have scored the victory for the right to record police in public spaces that Davis and Peters were calling for. With help from the American Civil Liberties Union, he sued the Boston police for violating his First and Fourth amendment freedoms— and won.
In August of this year, the First District U.S. Court of Appeals thoroughly vindicated Glik.
Wrote Circuit Judge Kermit Victor Lipez: “We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
It makes no difference if the person behind the camera is a journalist or everyday citizen, according to Lipez. ”Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw,” (and therefore First Amendment protections for news-gatherers can no longer) “turn on professional credentials or status,” he wrote.
It’s what the framers of Bill of Rights had in mind, Klinger of the University of Missouri-St. Louis observes. Newsgathering was very much the task of “citizen journalists” of 18th-century America. Lipez added that “ensuring the public’s right to gather information about their officials not only aids in the uncovering of abuses … but also may have a (beneficial) effect on the functioning of government.”
It’s particularly important to protect the right to report on the activities of law enforcement officers because they “are granted substantial discretion that may be misused to deprive individuals of their liberties,” he continued. Don’t look for a national test case before the Supreme Court on this issue, said Dalglish.
“It’s never going to get to the Supreme Court because the judges throw this bullshit out,” she said. “You can’t take something to the Supreme Court unless you lose, and almost no one loses” cases in which people are arrested for taking video of police.
But there is a disconnect between what the courts hold and what’s happening on the street.