In my previous post on this topic, I listed numerous instances of citizens being arrested solely for filming law enforcement officers doing their jobs. Last Friday, the Court of Appeals for the First Circuit affirmed a ruling that:
that [he] 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.
We can expect this case will be appealed to the US Supreme Court, and if they uphold this ruling (as they should), then it will be cause for celebration. For now, it’s one ruling in one circuit. By convention in the United States, this means the ruling applies only in the 1St Circuit (Maine, Massachusetts, New Hampshire and Rhode Island). Courts in other circuits will take notice of this ruling, but it is not binding precedent outside the 1st Circuit. (I’ll discuss this in more detail in a future posting). One of my favorite legal bloggers, Eugene Volokh, (“The Volokh Conspiracy”) presents a good analysis of the case.
Judge Lipez writes:
In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.
I could not have said it better myself. The only thing I would add to this, that in our society, the police are servants of the public, and thus responsible to the public for their actions. We are the oversight committee, a “Committee of the Whole, if you will. While it’s true we elect city counsels, and they appoint, or we elect, police commissions, in the end, the police work for us and we have the right to oversee them personally, not just through our elected officials. This oversight is what protects us from abuse.
As Eugene Volokh points out, this ruling is somewhat limited in scope. It doesn’t address all the issues (e.g. what restrictions can the government put on recording, who can be recorded, where they can be recorded and so on), but it does strike an important blow for the natural rights enshrined in the First and Fourth Amendments, and the very principal of good government that Juvenal was defending (see my previous post).
Beyond the constitutional matter, I found it interesting that this took place on Boston Common. Boston Common is the oldest park in the United States, and it is from here that the British Soldiers decamped to face the Colonists who were attempting to protect the armories at Concord and Lexington. In the city that helped lead the way to liberty for the Colonies, a man with a camera is leading the way again.
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