CMLP Urges First Circuit to Safeguard First Amendment Rights in Case Involving Cellphone Camera Recording of Police Officers

February 11, 2011

Cambridge, MA - The Citizen Media Law Project ("CMLP") submitted an amicus curiae brief (PDF) last week to the United States Court of Appeals for the First Circuit in a case involving a lawyer who was arrested for using his cellphone camera to record on-duty police officers on Boston Common. Joined by a broad amicus coalition that included Dow Jones & Company, Inc., GateHouse Media, Inc., Globe Newspaper Company, Inc., The Massachusetts Newspaper Publishers Association, Metro Corp., NBC Universal, Inc., New England Newspaper and Press Association, Inc., The New York Times Company, Newspapers of New England, Inc., the Online News Association, and the Reporters Committee for Freedom of the Press, CMLP urged the court to affirm the First Amendment right to gather news in public places.  

CMLP filed the brief in the case, Glik v. Cunniffe, which stems from an incident that occurred on the Boston Common in October 2007.  Plaintiff Simon Glik witnessed police arresting a man in the park.  Glik recorded the arrest using his phone's video camera and was arrested for violating the Commonwealth's Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which prohibits the "secret” interception of wire and oral communications.  The charges were eventually dismissed, and Glik sued the officers and the City of Boston.  A lower court denied a motion to dismiss Glik’s complaint, and the First Circuit is now considering the officers' appeal of that ruling.

Amici argued in the brief that the Wiretap Statute cannot be applied to criminalize recordings where the subjects of those recordings do not reasonably expect their communications to be private.  Allowing the arrest of a citizen for recording public officers conducting public business in a public place would not further the purpose of the Statute -- protecting the privacy interests of Massachusetts citizens -- and would run afoul of the First Amendment which protects the right to record public events and gather news and information.  "Unless the Wiretap Statute is applied only in cases where reasonable privacy interests are at stake," said CMLP's Executive Director David Ardia, "the law may be used to chill socially valuable newsgathering and watchdog activities and suppress the distribution of important information."

The Citizen Media Law Project was assisted by Harvard Law School’s Cyberlaw Clinic in drafting the brief, and Cyberlaw Clinic students Davis Doherty, David Kleban, Brandon Winston, and Elizabeth Winokur made significant contributions to the brief.  "It was a privilege to work with CMLP on an issue of such immediate import," said Clinic student Brandon Winston.  "In this era of the cameraphone, it is more important than ever that all citizens' First Amendment rights be protected."  The CMLP and the Cyberlaw Clinic are both based at Harvard University’s Berkman Center for Internet & Society, an organization dedicated to studying the development of cyberspace.

About the Citizen Media Law Project
The Citizen Media Law Project, which is jointly affiliated with the Berkman Center for Internet & Society at Harvard University and the Center for Citizen Media, provides legal assistance, training, research, and other resources for individuals and organizations involved in online and digital media.  The CMLP endeavors to serve as a catalyst for creative thinking about the intersection of law and journalism on the Internet.  Through the project’s website, www.citmedialaw.org, the active engagement of lawyers and scholars, and occasional sponsored conferences, project staff are working to build a community of lawyers, academics, and others who are interested in facilitating citizen participation in online media and protecting the legal rights of those engaged in speech on the Internet.  For more information, visit http://www.citmedialaw.org.

About the Harvard Law School Cyberlaw Clinic
The Cyberlaw Clinic, based at the Berkman Center for Internet & Society, engages Harvard Law School students in a wide range of real-world litigation, licensing, client counseling, advocacy, and legislative projects and cases, covering a broad spectrum of Internet, new technology, and intellectual property legal issues.  The Clinic was the first of its kind, and it continues its tradition of innovation in its areas of practice.  Among many other areas, the scope of the Clinic’s work includes counseling and legal guidance regarding complex open access, digital copyright, and fair use issues; litigation, amicus filings, and other advocacy to protect online speech and anonymity; legal resources and advice for citizen journalists; licensing and contract advice, especially regarding Creative Commons and other “open” licenses; patent reexamination requests for overly broad technology patents; and guidance and amicus advocacy for effective but balanced protection of children in the areas of social networking, child pornography, and online exploitation.  More information can be found at http://cyber.law.harvard.edu/cyberlawclinic.

About the Berkman Center for Internet & Society

The Berkman Center for Internet & Society at Harvard University is a research program founded to explore cyberspace, share in its study, and help pioneer its development. Founded in 1997, through a generous gift from Jack N. and Lillian R. Berkman, the Center is home to an ever-growing community of faculty, fellows, staff, and affiliates working on projects that span the broad range of intersections between cyberspace, technology, and society. More information can be found at http://cyber.law.harvard.edu.

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Last updated

February 11, 2011