EFF applauds the U.S. Court of Appeals for the First Circuit for holding that the First Amendment protects individuals when they secretly audio record on-duty police officers. EFF filed an amicus brief in the case, Martin v. Rollins, which was brought by the ACLU of Massachusetts on behalf of two civil rights activists. This is a victory for people within the jurisdiction of the First Circuit (Massachusetts, Maine, New Hampshire, Puerto Rico and Rhode Island) who want to record an interaction with police officers without exposing themselves to possible reprisals for visibly recording.

The First Circuit struck down as unconstitutional the Massachusetts anti-eavesdropping (or wiretapping) statute to the extent it prohibits the secret audio recording of police officers performing their official duties in public. The law generally makes it a crime to secretly audio record all conversations without consent, even where participants have no reasonable expectation of privacy, making the Massachusetts statute unique among the states.

The First Circuit had previously held in Glik v. Cunniffe (2011) that the plaintiff had a First Amendment right to record police officers arresting another man in Boston Common. Glik had used his cell phone to openly record both audio and video of the incident. The court had held that the audio recording did not violate the Massachusetts anti-eavesdropping statute’s prohibition on secret recording because Glik’s cell phone was visible to officers.

Thus, following Glik, the question remained open as to whether individuals have a First Amendment right to secretly audio record police officers, or if instead they could be punished under the Massachusetts statute for doing so. (A few years after Glik, in Gericke v. Begin (2014), the First Circuit held that the plaintiff had a First Amendment right to openly record the police during someone else’s traffic stop to the extent she wasn’t interfering with them.)

The First Circuit in Martin held that recording on-duty police officers, even secretly, is protected newsgathering activity similar to that of professional reporters that “serve[s] the very same interest in promoting public awareness of the conduct of law enforcement—with all the accountability that the provision of such information promotes.” The court further explained that recording “play[s] a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public’s ability to hold them to account for their wrongdoing.”

The ability to secretly audio record on-duty police officers is especially important given that many officers retaliate against civilians who openly record them, as happened in a recent Tenth Circuit case. The First Circuit agreed with the Martin plaintiffs that secret recording can be a “better tool” to gather information about police officers, because officers are less likely to be disrupted and, more importantly, secret recording may be the only way to ensure that recording “occurs at all.” The court stated that “the undisputed record supports the Martin Plaintiffs’ concern that open recording puts them at risk of physical harm and retaliation.”

Finally, the court was not persuaded that the privacy interests of civilians who speak with or near police officers are burdened by secretly audio recording on-duty police officers. The court reasoned that “an individual’s privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer.”

Given the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties has been recognized by a growing number of federal jurisdictions. In addition to the First Circuit, federal appellate courts in the Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

Disappointingly, the Tenth Circuit recently dodged the question. For all the reasons in the First Circuit’s Martin decision, the Tenth Circuit erred, and the remaining circuits must recognize the First Amendment right to record on-duty police officers as the law of the land.