N.H. authorities argue that secret recording of police is a crime

|The Volokh Conspiracy |

New Hampshire outlaws recording conversations when any party to the conversation "has a reasonable expectation that the communication is not subject to interception, under circumstances justifying such expectation," thus requiring the knowledge of all parties before such a conversation can be recorded.

Most states require only "one-party consent," under which you can record a conversation to which you are a party, because you consent to the recording, even if the others don't. But some states—including New Hampshire—require "all-party consent," or at least all-party knowledge, that the conversation is being recorded. And New Hampshire authorities read this as applying even when someone is recording his conversation with the police.

Indeed, Alfredo Valentin is under indictment for recording such a conversation, between himself and the police officers who were searching his home. The U.S. Court of Appeals for the 1st Circuit, which is in charge of cases from New Hampshire, has held (Glik v. Cunniffe) that a similar Massachusetts law violates the First Amendment; but that case involved someone openly recording the police, and the court stressed that fact in the Fourth Amendment portion of the Glik opinion. New Hampshire authorities appear to take the view that secret recording of the police can be banned, even if open recording cannot be.

A New Hampshire trial court decision last year in Valentin's case, however, rejected the authorities' theory on First Amendment grounds, and I think persuasively so:

"It is firmly established that the First Amendment protects a range of conduct surrounding the gathering and dissemination of information" including "the right of individuals to videotape police officers performing their duties in public. " Gericke v. Begin (1st Cir. 2014); see Glik v. Cunniffe (1st Cir. 2011) ("[T]he First Amendment protects the filming of governmental officials in public spaces ….").

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" "'[F]reedom of expression has particular significance with respect to government because it is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.' This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties." "In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights." "The same restraint demanded of police officers in the face of provocative and challenging speech, must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces." …

[T]he State argues that the First Amendment does not protect defendant's conduct because defendant concealed the fact that he was recording…. [But t]he question of "openness" did not enter into the First Amendment analysis in either [Glik or Gericke]…. The question of openness did enter into Glik's Fourth Amendment analysis … [in which the] plaintiff alleged he was arrested for violating Massachusetts' wiretap statute without probable cause. Massachusetts' wiretap statute extends only to "secret" recordings, so the Court's Fourth Amendment analysis turned on whether the police had probable cause to believe the plaintiff secretly recorded them.

The State argues Glik's analysis of whether the recording was secret shows that the First Amendment does not protect secret recordings. If the First Amendment protects secret recordings, the State argues, there could have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret.

To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. "The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws." Thus, the Glik [court]'s analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment's protection.

To the extent the State relies on Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001), to demonstrate that the First Amendment does not protect secret recordings, this reliance is misplaced. The Massachusetts Supreme Judicial Court in that case upheld the conviction of a defendant under Massachusetts' wiretap statute after he secretly recorded an interaction with police. The defendant's challenge in Hyde was based on statutory interpretation of Massachusetts' wiretap statute. The case did not address the First Amendment. Notably, was decided before Glik and Gericke clarified the First Circuit's position that the First Amendment protects the recording of police officers.

As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police. It is "clearly established … that the First Amendment right to film police carrying out duties in public … remains unfettered if no reasonable restriction is imposed or in place." "Reasonable restrictions on the exercise of the right to film may be imposed when the circumstances justify them." The right to film "may be subject to reasonable time, place, and manner restrictions." However, the State points to no existing restrictions that specifically forbid secretly filming police. Thus the Court need not consider whether such a restriction would qualify as a reasonable manner restriction.

The First Amendment also does not protect the filming of police that causes legitimate safety concerns or that "interfere[s] with police duties." However, the State points to no specific safety concerns caused by defendant's filming and does not allege defendant's filming interfered with police duties. The State argues secret filming of police allows confidential information to be recorded without police knowledge and allows criminals to secretly record undercover officers, thereby creating danger to those undercover officers. However, the State does not allege defendant actually filmed any confidential information or undercover officers. As such, the conduct for which defendant has been criminally charged is protected by the First Amendment….

The city didn't appeal the decision, so no binding precedent was set. But the ACLU of New Hampshire has just joined a federal lawsuit (Valentin v. City of Manchester) that essentially urges federal courts to accept the theory, and order Manchester not to interfere with people who "are peacefully—and whether openly or secretly—recording law enforcement officers engaging in official duties in a public place and when the recording does not interfere with those official duties." (Presumably any such order against Manchester, whether or not appealed to the 1st Circuit, would stop other New Hampshire officials from restricting such recording as well.)