As the U.S. Supreme Court has observed, 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. There is an undoubted right to gather news from any source by means within the law. The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles.
Glik brought suit under 42 U.S.C.S. § 1983, claiming that his arrest for filming defendant officers with his cell phone constituted a violation of his rights under the First and Fourth Amendments. In an interlocutory appeal, the police officers challenged an order of the United States District Court for the District of Massachusetts denying them qualified immunity on plaintiff's constitutional claims. The officers argued that they were entitled to qualified immunity on each of Glik’s constitutional claims and, accordingly, that the district court erred in denying their motion to dismiss.
Were the officers entitled to qualified immunity on each of plaintiff's constitutional claims?
The Court held that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. With regard to the First Amendment claim, the officers disputed the clarity of the law establishing a First Amendment right to record police officers carrying out their public duties. The court noted that, although not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space was a basic, vital, and well-established liberty safeguarded by the First Amendment. Plaintiff's recording was not "secret" within the meaning of Massachusetts' wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint made out a violation of plaintiff's Fourth Amendment rights.