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First Circuit: First Amendment Protects Secretly Recording Police Officers in Public

January 7, 2021

The U.S. Court of Appeals for the First Circuit has struck down the Massachusetts “wiretap” statute — which bans secret audio recordings — as it applies to the surreptitious recording of police officers performing their duties in public. In a pair of cases brought by the American Civil Liberties Union of Massachusetts and the controversial political group Project Veritas, the First Circuit held on December 15 that under the First Amendment to the U.S. Constitution, the Commonwealth could not prohibit the secret recording of police officers carrying out their official duties in public places because such recording is a form of newsgathering activity protected by the First Amendment. Project Veritas Action Fund v. Rollins, No. 19-1586, 19-1640.

“A citizen’s audio recording of on-duty police officers’ treatment of civilians in public spaces while carrying out official duties, even when conducted without an officer’s knowledge, can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what has transpired,” U.S. Circuit Judge David J. Barron (himself a former reporter) wrote for the court.

The decision means that Massachusetts journalists and citizens can, openly or secretly, record police discharging their duties in public without fear of criminal charges under the state’s wiretap law,  M.G.L. c. 272 § 99. Recording police officers, the court explained, plays an important role in “informing the public about how police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.”

The case builds on the First Circuit’s landmark 2011 decision in Glik v. Cunniffe, which recognized a First Amendment right to openly record government officials without consent while performing their duties in public. This week, the court extended that right to secret recording of police officers in public. While “public” is not clearly defined, the court says it includes traditional public forums (such as streets, sidewalks, and parks), the sites of traffic stops, and other “inescapably” public spaces. It is unclear whether publicly accessible private property is covered.

In its decision, the court rejected the generalized privacy concerns the Commonwealth advanced in support of applying the statute in this context. The court noted that police officers lose some privacy when doing their work publicly, and any civilian’s privacy interest is reduced when speaking within earshot of a police officer.

The panel, however, refused to strike down the entire law as overbroad, holding that most of its applications are constitutional. It also declined to decide whether the law improperly prohibits the secret recording of other government officials and individuals who lack an expectation of privacy.

Although the First Circuit’s ruling settled one issue presented by the Massachusetts recording law, many questions remain about balancing the values of privacy and accountability outside of the police officer context. The Supreme Judicial Court will soon consider whether the law applies to consensual recordings in which consent was allegedly obtained through fraud. The case, which is set for oral argument on Feb. 1, 2021, involves a recorded telephone interview between a Barstool Sports podcast host and the mayor of Somerville. Curtatone v. Barstool Sports, No. SJC-13027.

The author of this alert is Michael Lambert, a member of Prince Lobel’s Media and First Amendment Law practice. 

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