The First Amendment and the police in the digital age.

• Author: Lipez, Kermit V.

1. INTRODUCTION

   In almost thirty-two years as a judge, I have written over 1300 opinions. Each of these opinions was important to the parties involved, yet some have gained more prominence than others. This essay addresses one of those--a 2011 decision that involves the First Amendment, the complex relationship between the police and the communities that they serve, and the revolution in communications technology.

   I emphasize two points as I begin. I have enormous respect for police officers and their work. They risk their lives on the job--a reality that we have seen far too often in recent years--and go to work every day despite that risk. But I also support the close scrutiny of police work. I believe that we can honor the work of the police while still acknowledging the need for independent review of their work. This essay describes the stakes in balancing those two values.

2. BACKGROUND

   1. The Boston Common

      The story begins on the Boston Common, the oldest public park in America.' The British began an eight-year encampment there in 1768. (2) The colonial militia mustered there on the eve of the American Revolution. (3) George Washington, John Adams and General Lafayette visited the Common to celebrate independence after the Revolution was won. (4) In the 1860s, anti-slavery meetings took place there. (5) Anti-Vietnam War and civil-rights rallies were held on the Common in the 1960s, including one led by Dr. Martin Luther King, Jr. (6) In 1979, Pope John Paul II celebrated Mass on the Common. (7) Protests of one kind or another continue to be held there. It is perhaps the quintessential American setting for the exercise of free speech and public assembly. (8)

   2. Simon Glik

      Simon Glik, who moved from Russia to the Boston area as a child, is a 2006 graduate of the New England School of Law, where he ranked first in his class. (9) He tells prospective clients of his solo practice that he "tr[ies] hard to achieve justice in every case for every client," because he "believe[s] the rule of law is designed to protect the weak against the powerful," and that he "personally" has "experienced what it is like to be unjustifiably accused by the government," and is "prepared to fight" for his clients. (10)

   3. The Incident

      Glik's self-description is legitimate. He was unjustifiably accused by the government of criminal offenses because of an incident that occurred on the Boston Common while he was walking nearby on the evening of October 1, 2007. (11)

      On that night, he noticed three police officers arresting a young man on the Common. (12) Then he heard a bystander say something that sounded to him like "You are hurting him, stop." (13) Concerned that the officers were using excessive force to make the arrest, Glik stopped roughly ten feet away from the officers and began recording video footage of the arrest on his cell phone. (14)

      After placing the suspect in handcuffs, one of the officers turned to Glik and said, "I think you have taken enough pictures." (15) Glik replied, "I am recording this. I saw you punch him." (16) An officer then approached Glik and asked if his cell phone recorded audio. (17) When Glik said yes, the officer arrested him for unlawful audio recording in violation of the Massachusetts wiretap statute. (18) Glik was taken in cuffs to the South Boston police station. (19) In the course of booking, the police confiscated his cell phone and a computer flash drive and held them as evidence. (20) Later, the police added charges for disturbing the peace and aiding in the escape of a prisoner to the wiretap offense. (21)

3. GLIK IN COURT

   1. Proceedings Below

      The prosecution did not go well for the Commonwealth. It immediately dismissed the charge of aiding in the escape of a prisoner, acknowledging lack of probable cause. (22) In February 2008, in response to Glik's motion to dismiss, a Boston municipal judge disposed of the disturbing-the-peace charges, ruling that "the fact that 'the officers were unhappy they were being recorded during an arrest... does not make a lawful exercise of a First Amendment right a crime.'" (23) He also dismissed the wiretap charge, finding no probable cause to support it. The law requires a secret recording, and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording. (24)

      Glik then filed an internal-affairs complaint with the Boston Police, but the Department declined to investigate his complaint or take any disciplinary action against the arresting officers. (25) That stonewalling prompted Glik to file a [section] 1983 action against the arresting officers and the City in February 2010, claiming violations of his First and Fourth Amendment rights. (26)

      Asserting qualified immunity, the defendant officers moved to dismiss because, in their words, it was "not well-settled that [Glik] had a constitutional right to record the officers." (27) The trial judge denied their motion, concluding that "in the First Circuit... the First Amendment right to publicly record the activities of police officers on public business is established." (28)

      The defendants appealed immediately, which brought the case to the First Circuit. (29) Glik's lawyer enlisted the help of the ACLU to protect the district court's ruling on appeal. Glik's First Amendment claim that he had a right to record the arrest had broad implications, (30) which prompted media and other organizations from around the country to file amicus briefs on his behalf. (31)

   2. At the First Circuit

      1. Qualified Immunity

      On appeal, the officers continued to rely on qualified immunity--a difficult doctrine. Indeed, if I had to identify one issue that has consumed more of my time than any other on the Court of Appeals, it would be qualified immunity. Its purpose can be stated in deceptively simple terms. The doctrine protects government officers from damages liability, and often from a trial itself, by

      balanc[ing] two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. (32) Thus, in Glik as in every qualified-immunity case, the court faced two questions:

      * whether the facts alleged by the plaintiff made out a violation of a constitutional right; and

      * whether that right was clearly established at the time of the defendants' alleged violation, such that the officers should have known that what they did was wrong. (33)

      If the answer to either question was no, the officers prevailed. Thus, the "clearly established" inquiry adds a second layer of protection for government officials like the officers in Glik. If the law was not clear when they acted, we do not want to penalize them for taking actions that they reasonably could have believed were proper.

      But this clearly established standard accounts for much of the difficulty in qualified-immunity cases. The analysis must be situation specific. In every case, the reviewing court must ask whether an officer confronted with the particular facts alleged by the plaintiff would have understood that the conduct at issue violated a constitutional right. Without that specificity, the theory goes, government officials will not have fair warning that they are behaving unlawfully. That fair warning comes from judicial precedents establishing constitutional rights. This requirement accounts for another challenge in qualified-immunity law: the temptation for judges to avoid answering a difficult constitutional question when it is easier simply to say that the constitutional right was not clearly established at the pertinent time. In other words, if the right being claimed by the plaintiff was not clearly established when the government officials acted, those officials are entitled to qualified immunity even if the judges conclude that their behavior violated the plaintiff's constitutional rights. (34)

      Avoiding the constitutional question makes some sense if the judges on a panel disagree about whether a constitutional violation occurred, but do agree that the right was not clearly established at the relevant time. It is a prudent use of judicial resources to choose the consensus course. On the other hand, if judges constantly avoid the underlying constitutional question, no "clearly established" law will ever develop. Aware of the two-pronged qualified-immunity inquiry, the police officers in Glik urged us to hold that any right to film police carrying out their duties in public, if it existed, was not clearly established when Glik was arrested. My colleagues and I rejected that approach. We understood the importance of first answering the constitutional question.

      2. The Constitutional Question

      By its terms, the First Amendment's proscription on laws "abridging the freedom of speech, or of the press," says nothing about the gathering or dissemination of information by the public. (35) But the Supreme Court long ago established that "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw," and that there is "an undoubted right to gather news from any source by means within the law." (36) With these principles in place, and citing cases from two other circuits supporting Glik's claim, we concluded that "[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles." (37) Noting the temptation of governmental authorities to repress or discourage opposition, we observed that this temptation is particularly problematic for "law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties." (38) The ability to collect information about...