The New England First Amendment Coalition recently filed an amicus brief in a case that could affirm the public’s right to record in the Second Circuit.
Every circuit that addressed the issue — the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh — has recognized that the First Amendment protects the act of recording, at least in the context of recording police activity in public.
NEFAC and a group of scholars and advocates explained in the Aug. 18 brief that:
“Recording warrants protection as an essential precursor to speech, it is often expressive in its own right, and it facilitates the right to gather and disseminate information. Each of these functions falls independently within the sphere of activity the First Amendment protects. Together, these three functions strongly support and clearly establish First Amendment protection for the act of recording in public.”
The brief was written on behalf of the coalition and fellow amici by the Media Freedom & Information Access Clinic at Yale Law School. It was filed in Massimino v. Benoit, a case before the U.S. Court of Appeals for the Second Circuit.
The plaintiff in the case was arrested in 2018 while he filmed the exterior of a police station from a sidewalk in Hartford, Conn. Officers claimed that recording the outside of the building was “a security issue” and that they thought the plaintiff was committing the criminal offense of “reasonable suspicion.”
While the First Amendment right to record is established in nearly all circuits, the Second Circuit has not yet clearly ruled on the question.
“Without a clear statement from this Court, those who wish to exercise the right to record in public face a difficult choice: forego their expressive activity or risk arrest,” NEFAC and fellow amici wrote. “Meanwhile, uncertainty empowers officers who view recording (and the concomitant public scrutiny) as a nuisance. It enables them to turn away, punish, and even arrest those who exercise their right to record, notwithstanding the constitutional protection afforded that right in other circuits and the state law protections afforded in this one.”
NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. You can read all the coalition’s briefs and advocacy letters here and learn more about the right to record in your state here.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
NEFAC appreciates the support of all its donors and contributors. In particular, we would like to recognize the Estate of Gloria L. Negri, the John S. and James L. Knight Foundation and the following Leadership Circle donors: Rhode Island Foundation, The Boston Globe, Paul and Ann Sagan, and the Robertson Foundation. Major Supporters of NEFAC’s work include Hearst Connecticut Media Group, Boston University, the Academy of New England Journalists and WCVB-Boston.