Judge rules again that people have the right to make secret audio recordings of police in public places

A federal judge ruled today that a Massachusetts law that can be used to prosecute journalists and others making secret audio recordings of police and public officials in public spaces is unconstitutional.

The ruling by US District Court Judge Patty Saris would, if upheld, nullify a part of the state's wiretap law, known as Section 99, that bars such recordings, and would extend earlier rulings that people have the right to record police in public places as long as they let police know they're being recorded.

Saris issued her thoughts on the constitutionality of the law in rejecting a request by the state Attorney General's office to dismiss two lawsuits against Boston Police and the Suffolk County District Attorney's office, one by a pair of local activists who want to record police in public and the other an out-of-state rightwing activist who specializes in "gotcha" videos and who says he has the right to secretly record Massachusetts public officials in "investigations" of such matters as immigration.

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

Saris gave the state until Jan. 10 to negotiate wording with the lawyers in the two cases - which include the ACLU - that could be used to bar police from attempting to charge people who secretly record officials in public places. Boston Police currently use training materials that say that while people cannot be arrested for publicly recording officers in a public place, they can for making secret recordings.

The Attorney General's office is reviewing the ruling, a spokesperson said.

Saris derived part of her ruling from a 2011 ruling in which the US Court of Appeals for the First Circuit, which covers New England and Puerto Rico, ruled police should not have arrested a lawyer who used his phone to capture an arrest on Boston Common, something the officers involved knew he was doing.

In her ruling today, Saris wrote the Constitution would have allowed that lawyer to secretly record audio from the arrest as well. She said that also applied to K. Eric Martin of Jamaica Plain and Rene Perez of Roxbury, who say they secretly recorded interactions between police and the public on the Common and at Arizona BBQ in Roxbury - and to James O'Keefe, who says he wants to use "hidden necktie cameras, purse cameras, eyeglass cameras, and cameras whose lenses are small enough to fit into a button or rhinestone" as he seeks to embarrass Democratic officials.

Saris rejected an argument by O'Keefe that the law sought to stop his brand of investigation, saying the law was, in fact, "content neutral." And she acknowledged that police, at least, would have legitimate reasons to seek to ensure certain meetings, for example, with informants or crime victims in public places are not recorded secretly. But, she continued, these are exceptions, not the Constitutional default:

When such situations arise, police are free to "take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations." Alvarez, 679 F.3d at 607; see also Glik, 655 F.3d at 84 ("[T]he right to film . . . may be subject to reasonable time, place, and manner restrictions."). Nothing in the relief these plaintiffs seek would require otherwise. If an officer needs to protect the safety of an informant or her fellow officers, or seeks to preserve conversational privacy with a victim, the officer may order the recording to stop or to conduct the conversation at a safe remove from bystanders or in a private (i.e., non-public) setting. See Alvarez, 679 F.3d at 607. ("Police discussions about matters of national and local security do not take place in public where bystanders are within earshot . . . ."). A reasonable restriction would remove the conversation from the scope of the relief sought (and ordered) in this case. In short, Section 99 prohibits all secret audio recording of any encounter with a law enforcement official or any other government official. It applies regardless of whether the official being recorded has a significant privacy interest and regardless of whether there is any First Amendment interest in gathering the information in question. "[B]y legislating this broadly -- by making it a crime to audio record any conversation, even those that are not in fact private -- the State has severed the link between [Section 99’s] means and its end." Alvarez, 679 F.3d at 606.

Saris left some issues to later cases - for example, whether a restaurant to which the public is allowed entry is a "public place," because public places have different privacy expectations than private property. But on the whole, she concluded:

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions. The parties shall submit a proposed form of injunction by January 10, 2019.