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Federal Judge Rules Massachusetts Law Banning Secretly Recording Police in Public Is Unconstitutional

by Dale Chappell

The U.S. District Court for the District of Massachusetts ruled that secretly recording the police in public is protected by the First Amendment and that a Massachusetts law forbidding such activity is unconstitutional. 

When Boston police arrested Simon Glik for filming the police while they beat a man in 2007, he sued, arguing his recording is protected by the First Amendment. He won. Still, Massachusetts police departments arrest people for doing the same thing, despite the ruling. 

Now, the American Civil Liberties Union (“ACLU”) has sued, yet again, on behalf of Eric Martin and Rene Perez, civil rights activists who record police in secret because of retaliation when they do so in the open.

The problem, the ACLU argues in the lawsuit, is that Massachusetts has a wiretap law that bans secret recordings, even in public places. 

The law, known as “Section 99,” allows cops to arrest people who secretly record cops and throw them in prison for up to five years. Even though police have lost lawsuits over the law, they have continued to arrest people recording the police. In 2012, Shrewsbury police arrested Irving Espinosa-Rodriguez for showing his passenger how to record a traffic stop. 

In 2015, Chicopee cops arrested Karen Dziewit for secretly filming her arrest. And in 2015, Hardwick police arrested Destiny McKeon because she knew about someone secretly recording the police. 

Federal judge Patti B. Saris ruled that “diminished privacy interests of government officials performing their duties in public must be balanced by First Amendment interest in newsgathering and information — dissemination.” Section 99, she said, was a blunt instrument used by police to suppress expression. That, the court held, violates the U.S. Constitution. 



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