When Simon Glik was walking past Boston Common one night in 2007, he saw three police officers arresting a young man. Another bystander called out for the officers to stop because they were hurting the suspect. Glik began recording the arrest using the video camera on his phone. When asked to stop recording Glik said no, saying that he saw one of the officers punch the young man. The officer also asked if Glik’s phone had audio recording. Yes, Glik replied, whereupon he was arrested for making an unlawful audio recording under state wiretap legislation, disturbing the peace and aiding in the escape of a prisoner (the last charge was subsequently dropped). The Boston municipal court acquitted Glik: he had a First Amendment right to record the arrest and the wiretap statute prohibits only secret recordings; Glik had filmed the police openly.
Glik brought a civil action against the police, which they moved to dismiss on the grounds that Glik’s constitutional right to film was unclear and they enjoyed qualified immunity from personal liability in the exercise of their functions. The district court denied the motion. Glik’s First Amendment right was clearly established, which meant that the police could not plead immunity for violation of it. The First Circuit agreed on appeal: Glik v Cunliffe (1st Cir, 26 Aug. 2011) [Link available here]. Glik’s acts were clearly protected by First Amendment guarantees of free speech and a free press, which extend to promoting free discussion (and public filming) of government acts. Glik’s Fourth Amendment right to protection from arrest without probable cause was also violated.