Video Taping Government Officials is an Ancillary to First Amendment


Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) Opinion of the court:

Judge Kermit Lipez delivered the opinion of the court. The court noted the principle of qualified immunity balanced the need to hold public officials accountable with the need to shield such officials from harassment on account of their public duties. The court therefore applied a two-prong test, first, did the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the violation.

The court first addressed the question of whether Glik’s First Amendment rights had been violated. It noted that “we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties” and held that Glik had a constitutional right to videotape a public official in a public place. The court noted that this right was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. It was clear in the current case that none of those limitations applied.

Second, the court looked at whether the right to videotape was clearly established at the time of the arrest. The court had “no trouble concluding that ‘the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional.'” (brackets in original) The court noted that some constitution violations are “self-evident” and the right to film public officials in a public place was clearly established a decade prior to Glik’s arrest.
Next, the court determined if Glik’s Fourth Amendment rights had been violated. The court noted that an arrest must be based upon probable cause. Noting that Glik claimed that no probable cause existed and that the officers stated that probable cause existed that the wiretap statute was violated. The court looked to the Massachusetts Supreme Judicial Court for the determination of state law. The Massachusetts court required that the recording be made secretly to be a violation, and that when a camera was in plain sight a recording could not be held to be made secretly. In Glik’s case, the criminal complaint stated that “openly record[ed] the police officers”, (brackets in original) was not made in secret, and that therefore the officers had no probable cause to arrest Glik. Since there was no probable cause, Glik’s Fourth Amendment rights were violated.

Finally, the court determined that the absence of probable cause as a constitutional violation was clearly established in law. The court therefore held that the district court’s denial of the officers of qualified immunity was proper, affirming the decision.


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