Last Thursday, according to the Shrewsbury Daily Voice, Irving Espinosa-Rodrigue was arraigned in Westborough District Court for making a recording of a police officer in violation of Massachusetts' wiretap law, M.G.L. c. 272, § 99. The audio/video recording was allegedly made secretly during a traffic stop by a female passenger in Espinosa-Rodrigue's car at his direction, and later uploaded to YouTube.

But wait a minute -- didn't we already deal with this issue in Massachusetts? Didn't the U.S. Court of Appeals for the First Circuit, the federal appeals court with jurisdiction over Massachusetts, pretty clearly state in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that there's a First Amendment right to record the activities of the police in public?

The Glik decision, resounding though it certainly is, dealt with a situation in which the recording at issue was made openly, not secretly. Although the First Amendment analysis formed the heart of the First Circuit's ruling, the Court also considered Glik's Fourth Amendment rights. In that section of the decision, the Court found that Glik had adequately pleaded that the officers who arrested Glik were on notice that he was taping them. If that were true, the Court held, the officers should have known that there was no violation of Massachusetts' wiretap law, which only prohibits secret audio recordings. Thus, Glik's arrest would have violated not only his First Amendment rights but also his Fourth Amendment right against arrest without probable cause.

Which raises the question -- does all of the great First Amendment language in Glik v. Cunniffe only apply to situations in which a citizen openly records an officer's activities? The intersection of the First Amendment and secret recordings of the police was not directly before the Court in Glik, and so one could argue that Glik leaves open the possibility that secret recording could be punished in a manner consistent with the First Amendment. At the very least, I am sure that if Espinosa-Rodrigue files a Section 1983 claim against the Shrewsbury Police Department, we will see an argument that Glik did not "clearly establish" a right to record the police secretly (as would be required for the individual officers to escape liability on a qualified immunity defense).

But frankly, that argument strikes me as weak. The Court framed the question in Glik as whether Glik was exercising a First Amendment right to "film[] the officers in a public space," id. at 79, not whether the First Amendment protects "open" recordings.  Moreover, the great First Amendment language in Glik (about which I previously waxed rhapsodic) was less about whether the police know that a recording is being made than the benefits of recording the police going about their duties in public, e.g.:

• "[I]s there a constitutionally protected right to videotape police carrying out their duties in public?  Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative." Glik at 82.
• "Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum.  In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are 'sharply circumscribed.'" Id. at 84.
• "[A] citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment." Id. at 85.

(Emphasis added.) The Court's First Amendment analysis does not mention, let alone turn on, whether Glik's recording was made openly or secretly. Indeed, both open and secret recording can serve the ends of public scrutiny of the police, because secret recordings reveal to the public how officers behave when they are not aware they are being watched.

Case law following Glik likewise does not restrict First Amendment protection to open recordings. After the First Circuit's decision in Glik, the Seventh Circuit issued its opinion in ACLU v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (our discussion here). Alvarez addressed similar issues regarding a "police accountability program" planned by the ACLU of Illinois, which would involve openly making audiovisual recordings of Chicago police officers going about their duties in public. The Court, in an opinion that relied heavily on the analysis in Glik, found that enforcing Illinois' broad eavesdropping act against the ACLU would violate the ACLU's First Amendment rights. However, the Court noted explicitly that it was not restricting the First Amendment right at issue to open recordings:

We are not suggesting that the First Amendment protects only open recording. The distinction between open and concealed recording, however, may make a difference in the intermediate-scrutiny calculus because surreptitious recording brings stronger privacy interests into play. 

Alvarez at 607 n. 13. Alvarez thus suggests that the First Amendment would protect secret recordings, particularly in a situation where there are no legitimate privacy interests at stake.

Another point of distinction between Espinosa-Rodrigue's recording and that in Glik is that Espinosa-Rodrigue's recording was made during a traffic stop. The First Circuit in fact had the opportunity to consider traffic stops in Glik when discussing an earlier decision in from the Third Circuit:

The second case appellants cite is a Third Circuit opinion finding the right to film not clearly established in the context of a traffic stop, characterized as an "inherently dangerous situation[]." Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010). Kelly is clearly distinguishable on its facts; a traffic stop is worlds apart from an arrest on the Boston Common in the circumstances alleged. Nonetheless, even if these cases were to establish a circuit split with respect to the clarity of the First Amendment's protections in the situation before us, that split would not undermine our conclusion that the right violated by appellants was clearly established in this circuit at the time of Glik's arrest. See Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989) (finding constitutional right clearly established in the First Circuit despite "recogni[tion] that the courts are not yet unanimous on whether this . . . right exists"). 

Glik at 85.

Although the First Circuit stated that it would be possible to distinguish the Third Circuit's decision in Kelly based on its facts, it would be unwise to read this language as carving out all recordings made during traffic stops from First Amendment protection. The First Circuit did not embrace any categorical exclusions from the First Amendment in this area. Rather, it found that the First Amendment right to record was a qualified right that applied to "peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties." Glik at 84.

While traffic stops might be "inherently dangerous situations" with which recording might potentially interfere, the recording in the Espinosa-Rodrigue case did not do so. This is obvious from the fact that the police apparently did not detect the recording until it showed up on YouTube. The qualification mentioned by the First Circuit for interference with police activity therefore does not apply, and any attempt to rely on the circumstance of the traffic stop to justify Espinosa-Rodrigue's after-the-fact arrest would seem to fall short.

Glik also notes that the right to record "may be subject to reasonable time, place, and manner restrictions." Glik at 84. If the Massachusetts legislature were to pass a law specifically prohibiting recording during traffic stops, it is an open question as to whether such a law would be considered a time/place restriction or survive constitutional scrutiny. For now, no such law exists, and in the absence of such a law the constitutionality of Espinosa-Rodrigue's arrest for wiretapping is extremely dubious.

Jeff Hermes is the Director of the Digital Media Law Project.

(Photo courtesy Flickr user Ruin Raider under a Creative Commons BY-NC-ND 2.0 license.)