The New England First Amendment Coalition recently joined an amici curiae brief in a case involving a journalist arrested in 2011 while recording police at an Occupy Wall Street protest in New York.The U.S. Court of Appeals for the Second Circuit - which has jurisdiction in Vermont and Connecticut - is currently hearing the case and has an opportunity to find a clearly established First Amendment right to record police in public places.
"Without a clearly defined right to record, journalists and citizens seeking to document police activity run the risk of being arrested - even when the act of recording does not interfere with the duties being carried out by law enforcement," argued NEFAC and 62 fellow amici in a March 17 brief drafted by the National Press Photographers Association.The case, Higginbotham v. City of New York, involves a journalist who was covering the Occupy Wall Street protest on Nov. 15, 2011, at Zuccotti Park in New York. The journalist was arrested while recording the separate arrest of a protester by police. The journalist claimed the police retaliated against him in violation of his First Amendment rights.In the brief, NEFAC and fellow amici argue for a clarification of the constitutional right to record police activity in public places and that this right should be determined "clearly established." This determination is important because police officers can be protected by qualified immunity against lawsuits involving the right to record if that right isn't clearly established by the courts.According to the brief:[T]his court should embrace the opportunity to provide judicial assurance that the right to photograph and record police activity in public places is enshrined in the First Amendment. In addition, since the First Amendment guarantees the freedom to document police activity, this court should give that guarantee teeth by holding that the constitutional right to record police is "clearly established." Otherwise, officers in this circuit will continue to argue . . . that the doctrine of qualified immunity provides blanket protection against lawsuits challenging arrests aimed at thwarting the lawful recording of police activity.Other New England states - Maine, New Hampshire, Massachusetts and Rhode Island - are in the jurisdiction of the U.S. Court of Appeals for the First Circuit. That court in 2011 confirmed a First Amendment right to openly record police officers carrying out their duties in a public place.In Glik v. Cunniffe, the First Circuit court explained that "gathering information about government officials in a form that can be readily disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs."