Court upholds "First Amendment" right to film police
The Supreme Judicial Court has interpreted the statute to penalize only "secret" use of electronic devices to hear or record the contents of a wire or oral communication with another. In Commonwealth v. Jackson, 370 Mass. 502, 507 (1976), the Court held that an individual needs to have "actual knowledge" of a recording and that such knowledge can be shown where there are "clear and unequivocal objective manifestations of knowledge."
State wiretapping statutes that prevent citizens from filming police officers in public places where those citizens have a right to be present violate citizens' First Amendment rights.
The ACLU intended to promote police accountability by openly audio recording police without their consent when (1) the officers were performing their public duties, (2) the officers were in public places, (3) the officers were speaking at a volume audible to the unassisted human ear, and (4) the manner of recording was otherwise lawful.
Restricting the use of an audio or audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording."
The locations where filming took place - streets and parks - were traditional public fora and open to all. In each case, the people filming the police activity had a right to be where they stood when they recorded police conduct.
(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.
The ability of individuals to record police in public without fear of reprisal is an essential mechanism for injecting transparency where it is sorely lacking, for holding the government accountable for misconduct, and in many cases for protecting good police officers from misattributed blame.
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