Let’s say your son is a 19 year old sophomore in college. They are on their way back to their dorm with a few friends, all of whom have been drinking and all of whom are under 21. Campus police officers approach, ask for ID’s and learn that they are underage. Things get a chippy and the officers get pushy. One of the kids gets pushed to the deck and your son takes a few steps back and begins recording the events on his cell phone camera. Noticing that they are being recorded, the officers confront your son, take his phone and place him under arrest for wiretapping (surreptitious recording of another). You learn of his arrest and the fact the university is threatening sanctions against your son, too. You’re outraged. You have every right to be.
With the ubiquity of camera phones, we are seeing the collision of the First Amendment and police arrests of citizens. A federal court in Boston just announced a very important case on this topic when it held: “the public’s right of access to information is coextensive with that of the press.” (Glick v. Cuniffe, 8-26-11, First Dist. Court of Appeals). We all have the inherent right to participate in “the news-gathering protections of the First Amendment”. This right does not require that we have a press pass to the sidelines of the arrest of a citizen.
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So back to the situation at hand. Your son is charged with, among other things, a felony for wiretapping. The federal court has cleared the way for not only a Motion to Dismiss the criminal case but a civil lawsuit as well. Officers who violate this right can be held to account for their misigivings of being recorded. Government immunity offers them little shelter. There is perhaps no more important time for the First Amendment to be exercised than recording adrenaline-fueled government officers exercising their broad discretion to arrest another citizen. Hats off to the First Circuit Court of Appeals in recognizing this right and permitting the lawsuit against the government to proceed.