The United States Court of Appeals for the First Circuit on Tuesday held that police discharging their duties in public can be secretly recorded, upholding part of a lower court order that struck down Massachusetts' sweeping ban on surreptitious recording but refused to nix the law in its entirety. The court held that the law was unconstitutional "insofar as it criminalizes the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces."
In a 72-page opinion, the three-judge panel (which included retired U.S. Supreme Court Justice David Souter), found that citizens should not face criminal charges for recording police officers in public, even if the officers are unaware they are being recorded. "A citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute news gathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired," the court wrote in the ruling tackling Massachusetts' 1968 wiretap law, known as Section 99.
When it comes to police officers, the panel found that dealing with additional scrutiny is part of the job and those challenges can include "the loss of some measure of their privacy when doing their work in public spaces."
The cases are Project Veritas Action Fund v. Rollins, case number 19-1586, and Martin et al. v. Rollins, case number 19-1629 (1st Cir. Dec. 15, 2020)