In 2011, the First Circuit Court of Appeals ruled that we have the right to record the police in the public performance of their duties. But what does the right to record the police mean if you cannot exercise it? Not much.

Our society entrusts the police with unusual and extreme powers: the ability to use violence and to deprive us of our liberty primary among them. Recording the police is a tool we can use to make sure officers don’t abuse those powers, and with which to hold them accountable if and when they do. Five years ago, the First Circuit held that this right is protected by the First Amendment. Chilling videos depicting police killing people across the country, released over the past few years with alarming frequency, underscore the importance of securing this right.

Here in Massachusetts, our right to record is at risk.

Under the state’s wiretap statute, known as Section 99, someone convicted of secretly recording another person faces up to five years in prison. The law also makes it a crime to “permit[],” “participate[] in a conspiracy to commit,” or be “an accessory to a person who commits” a secret recording. Despite the fact that recording the police performing their duties in public is protected First Amendment activity, however, the statute contains no exception for this behavior.

In 2011, the First Circuit ruled in Glik that recording the police in the public performance of their duties is First Amendment protected activity. The court’s ruling did not distinguish between overt and secret recordings. But some people fear recording the police openly—in other words, they cannot exercise their right to record unless they do so secretly. The fear of arrest and prosecution under Section 99 prevents individuals from secretly exercising their constitutional right to record the police.

A right in theory is only as good as a right in practice. That’s why the ACLU of Massachusetts filed suit on behalf of two Boston area civil rights activists, arguing that the Massachusetts wiretap statute cannot apply to secret recordings of police officers in the public performance of their duties.

Neither of our clients have secretly recorded the police because they have good reason to fear they would be arrested if they did. Massachusetts law enforcement officials across the state have arrested and charged multiple people for secretly filming police officers in the public performance of their duties, alleging that these secret recordings violate the wiretap statute. In 2001, the state’s Supreme Judicial Court (SJC) upheld the conviction of Michael Hyde, who was found guilty of violating the wiretap statute for secretly recording a traffic stop.

The Suffolk District Attorney, Dan Conley, prosecuted someone for secretly recording cops, and the BPD explicitly teaches its officers that such recordings are illegal and constitute probable cause for arrest.

In this fraught landscape, we need a federal court to step in to clarify that secretly recording police officers in the public performance of their duties is constitutionally protected activity. Otherwise we may have the right to record the police on paper, but not in practice.

The government says our clients don’t have a right to sue, but that’s wrong 

Perhaps because the prosecutors and the police think the ACLU has a strong argument on the constitutional question at stake here, the District Attorney and Boston Police Department motions to dismiss our lawsuit focus on procedural issues. Among those technicalities is the question of standing. (Read our opposition briefs to their motions to dismiss for information about the other procedural challenges.) Essentially, both the Suffolk DA and the BPD argue that our clients don’t have a right to challenge the constitutionality of the wiretap statute as it applies to secret recordings of cops. Their claims are circular, wrong, and dangerous.

In order for a plaintiff to meet the standing requirement to make a preemptory First Amendment challenge to a criminal statute, the following three conditions must be met:

1. Plaintiffs must demonstrate that they intend to engage in constitutionally protected activity (here, the activity is secretly exercising the right to record police performing their public duties).
2. The statute must prohibit that constitutionally protected behavior.
3. There must be a credible threat of enforcement.

It is very clear to us that we’ve met these requirements. Our clients are civil rights activists who have faced verbal and physical retaliation by the police simply for exercising their right to record. In the complaint, plaintiff Eric Martin describes why he wants to secretly record the police: so he may obtain an accurate account of police behavior, and for his safety when he is alone. As our brief attests, “The complaint describes particular episodes when [Martin] has wanted to secretly record police officers—including when a BPD officer shoved him to the ground and yelled at him to stop taking pictures, and several others where he has seen BPD officers interacting with homeless individuals in Downtown Crossing—and alleges that he would want to do so again in similar circumstances.” Furthermore, both plaintiffs conduct Know Your Rights trainings with members of the public. They want to be able to tell people to secretly record the police, but they are afraid to do so because the wiretap statute makes it a crime to instruct someone else to do so.

On the second question—whether or not the statute forbids the constitutionally protected behavior—there’s little debate. The plain language of the statute clearly forbids secret recordings, and doesn’t distinguish between secretly recording members of the public and police officers in the public performance of their duties.

Finally, there’s the question of a credible threat: Do our clients have reason to fear that law enforcement will actually arrest and prosecute them for secretly recording the police? The answer is clearly yes on both counts. It’s up to the government to show that a law which has been enforced in the past will not be enforced in the future against similar behavior. District Attorney Conley and the BPD could have, upon having been served this lawsuit, simply issued public statements to the effect that their offices do not consider secret recording of police in the public performance of their duties to be a crime under the wiretap statute, and that they will not prosecute or arrest people for doing so. They did not. In fact, the Boston Police Department’s motion to dismiss our lawsuit reconfirms the opposite: the BPD considers secretly recording police to be an arrestable offense, and instructs its officers accordingly. Furthermore, there have been at least six arrests and prosecutions in Massachusetts under Section 99 for secretly recording police performing their duties in public.

Here’s to hoping the federal court agrees with us, and allows our clients’ lawsuit to proceed to the constitutional question at the heart of the matter. We shouldn’t have to wait until the next person is arrested and prosecuted for secretly recording the police to settle this matter, so that the people of Massachusetts can be sure of their rights under the law.