Boston Court Ruling Affirms Citizens' Right To Record Officials

By Toni Waterman

Sept. 23, 2011

Watch the segment that aired on September 22 on WGBH's Greater Boston

BOSTON — Simon Glik, a lawyer, was walking through Boston Common on the night of October 1, 2007, when he stumbled upon what he described as an unbelievable situation: Three Boston police officers forcefully wrangling, punching and trying to hold down a young man.

"I saw him just being in a choke hold, being punched and looking like he was in tremendous agony. I wasn't sure what was going on, but I knew if I were to tell that to someone, no one would believe me," Glik said.

So Glik whipped out his cell phone and started recording what to him appeared to be police using excessive force. And that's where his troubles began.

"They arrested him and they looked at me and said, 'Well, you've had enough.' By that time I think I had stopped taking any video," said Glik.

But it was his next sentence that got him arrested.

"I said, 'I saw you guys punch him.' Once they heard that, they got immediately very angry and sort of got in a huddle for a couple of seconds and then they informed me that I was under arrest. I said, 'What for?' And they said, "Wiretapping," Glik said.

The cops claimed Glik violated the state's wiretapping law, which prohibits secret audio recordings. But the ACLU's Carol Rose says, there was nothing secret about what Glik was doing.

"In Massachusetts if you want to audio record a conversation with another person you can't do it in secret, you have to do it publicly and openly. But clearly in this case Simon Glik did it publicly and openly. He held up his camera. He said I'm recording," Rose said.

A frame from Simon Glik's cell phone recording of the Boston police in 2007. (via Greater Boston)

Along with illegal wiretapping, Glik was charged with disturbing the peace and aiding the escape of a prisoner. But the charges didn't hold up in court. In January 2008, Judge Mark Summerville threw out the charges, saying photography is a form of free expression and is protected by the First Amendment.

But last year, Glik filed a civil rights lawsuit against the three police officers and the City of Boston, insisting his right to free speech had been violated and that he was arrested without probable cause.

The police argued immunity, claiming they were working in their official capacity and that they had been poorly trained on the law. But the court didn't buy it. Last month, in a unanimous decision, the U.S. Court of Appeals for the First Circuit in Boston ruled:

"A citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital and well-established liberty safeguarded by the First Amendment."

Glik said the ruling is a step in the right direction.

"One of the major goals has been accomplished by this monumental decision of the First Circuit. And it's not that I just have a right, it's everybody now who has a right and that right has been prescribed on such a level that it's impossible for the police to misinterpret," Glik said.

The First Circuit's ruling means Glik's suit against the officers can now move forward and they could be on the hook for Glik's legal costs, among other damages.

The ruling could also have some profound effects nationwide for other cases like Glik's.

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