The Right to Record Police Doesn’t Disappear When You Put Your Phone in Your Pocket
The First Amendment right to record the police is a critical check and balance for people living in a free, open, and democratic society. It promotes the free discussion of governmental affairs as well as protects the democratic process. And for some communities, it’s a vital tool for uncovering, if not deterring, police misconduct.
But Boston-based civil rights activists Eric Martin and René Pérez were afraid to record the police. Under a state wiretap law passed in 1968, known as , it is a crime to secretly record private individuals and government workers, even those on duty like police officers. Since 2011, the Boston Police Department has applied for a criminal complaint against at least nine people for secretly recording police officers performing their duties in public, and the Suffolk County District Attorney’s Office has opened numerous case files based on this felony charge as well.
Because of this fact, although Martin and Pérez often feared for their safety when openly recording police officers in public, they also knew recording secretly could subject them to arrest and prosecution. Caught between safety concerns and fear of punishment, they often chose not to record at all.
But that’s about to change.
Two years ago, the ACLU of Massachusetts , Martin v. Gross, on behalf of Martin and Pérez, arguing that they have every right under the First Amendment to secretly record police officers carrying out their duties in public. This week, agreed.
Taking photographs, video, and audio in public spaces is a constitutional right — and that includes law enforcement officials carrying out their duties. The defendants in this case argued that they could lawfully apply Section 99 to prevent individuals from secretly recording police officers performing their duties in public. In her recent ruling, Judge Patti B. Saris of the United States District Court for the District of Massachusetts called that application of the wiretap law unconstitutional.
The court explained that police officers have “diminished privacy interests” when performing their job in public, while the public has a constitutionally protected interest in newsgathering, information-dissemination, and monitoring the conduct of law enforcement officials. The parties must now submit proposed language for an order implementing the court’s decision by January 10.
The ACLU of Massachusetts has long championed the right to record the police in the public performance of their duties. In , Simon Glik openly recorded Boston police officers when they treated a man too roughly on the Boston Common. Glik himself was then arrested for his constitutionally protected behavior. In 2011, the U.S. Court of Appeals for the First Circuit unanimously affirmed that he had a First Amendment right to record the police carrying out their duties on the Boston Common.
Although the fact pattern in Glik happened to involve an open recording, the First Circuit did not so limit its First Amendment ruling. Judge Saris’ ruling evokes Glik’s protection of both the open and secret recording of police officers performing their duties in public, reiterating that “the First Amendment’s protection for information-gathering has special force with respect to law enforcement officials who are granted so much discretion in depriving individuals of their liberties.”
In recent years, the exercise of this First Amendment right has changed the public’s understanding of encounters between police officers and the public. Time and time again, people’s recordings of police interactions have started national conversations about police reform and accountability, from Eric Garner to Philando Castile to Sandra Bland. As the Trump administration welcomes a new attorney general who opposes Obama-era police reform and civil rights work, all of us play an increasingly important role in keeping the local police in check.
This week’s decision will help ensure that we have the tools to do so.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
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Free Speech
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Minnesota Supreme CourtNov 2024
Free Speech
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This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.