Federal Court: Secretly Recording Government Officials Is a First Amendment Right

The ruling extends to secret recordings of police officers.


Peter Cripps/Dreamstime

A federal court ruled Monday that secretly recording government officials, including police officers, is protected under the First Amendment.

The ruling from Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts applies to two cases. The first was a civil lawsuit brought against Boston Police Commissioner Daniel Conley and Suffolk County District Attorney William Gross by the American Civil Liberties Union (ACLU) of Massachusetts on behalf of Boston-area activists René Pérez and Eric Martin. As Slate noted, Pérez and Martin's specific area of activism involves taking videos of on-duty police officers.

The other suit, meanwhile, was filed against Conley by the Project Veritas Action Fund. Project Veritas, run by its founder and president James O'Keefe, is a conservative activist group known for secretly recording and later publishing videos of both public officials and private groups in an attempt to expose corruption.

In both suits, the plaintiffs argued against a 1968 law known as Section 99 that generally prohibits secretly recording both government workers and private individuals. Those found in violation could be arrested, meaning that secretly recording police misconduct could land you jail. Since 2001, Saris wrote, the district attorney's office for Suffolk County has filed felony charges relating to Section 99 in at least 11 cases. That's not all. "During the same period, the Boston Police Department…has applied for a criminal complaint on a Section 99 violation against at least nine individuals for secretly recording police officers performing their duties in public," Saris wrote.

Pérez and Martin claimed this law gets in the way of their activism. "The plaintiffs aver that they desire to secretly record police officers but have refrained from doing so because of Section 99," Saris wrote in describing their argument. Project Veritas provided similar reasoning. "I would love to probably secretly record a whole bunch of people because that's what I do," a witness for the group previously said in court, adding: "We don't have any plans to because we can't. It's against the law."

Ultimately, Saris ruled that secretly recording government officials is protected by the Constitution:

On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

Saris did explain that police officers and government officials do have a right to some privacy. "However, the diminished privacy interests of government officials performing their duties in public must be balanced by the First Amendment interest in newsgathering and information-dissemination," she wrote. For instance, police officers can seek privacy when the conversation being recorded poses a safety risk or involves truly confidential information. But the problem with Section 99, Saris wrote, is that it's far too broad:

In short, Section 99 prohibits all secret audio recording of any encounter with a law enforcement official or any other government official. It applies regardless of whether the official being recorded has a significant privacy interest and regardless of whether there is any First Amendment interest in gathering the information in question.

So what comes next? The parties involved in Saris' ruling have until January 10 to submit an injunction to the court, based on her ruling, that explains what parts of Section 99 are not constitutional. The Massachusetts attorney general's office, meanwhile, said it's looking over Saris' decision and will decide if it wants to appeal, according to WBUR.

But at least for now, the ruling is a win for the First Amendment, particularly when it comes to police accountability. It's no secret that police abuse is a real problem in America, and far too often instances of misconduct are covered up. Recording officers while they're on the job obviously helps expose misconduct. And knowing that a private citizen could be recording should theoretically make officers pause before they engage in misconduct, at least in public places.

Government officials certainly deserve some privacy. But since they're employed and paid by the taxpayers, private citizens have a right to know how they're performing on the job. Saris' ruling just confirms that right.

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  1. This is a big deal. It is only a district court but it still is the first time that a court has ruled that people have a 1st Amendment Right to record interactions with government officials. What makes this ruling important is that the right defined is a broad right to record government officials under pretty much all circumstances not just when the interaction is in public.

    1. Why do we have a 1st Amendment right to record police interactions but not to criticize Israel? The answer is either both or neither.

      1. You have a 1st Amendment right to criticize Israel. You do not have a 1st Amendment right to a contract with the state government.

        1. The court’s decision is clearly wrong, because this could allow people to record certain discrete discussions regarding secret government affairs. Imagine if someone were to have permissibly recorded the delicate conversations that facilitated the very demanding, nine-year prosecution of our nation’s leading criminal “satirist,” documented at:

          Such a “right” would certainly have had the potential of leading to revelations that could have damaged the reputations not only of several distinguished prosecutors, but of some of our most respected colleagues here at New York University. Clearly such a result cannot be allowed, so let us all hope that a higher court will rapidly overturn this ruling and set forth specific limits on this “free speech” nonsense before things get out of hand.

    2. I think maybe you mean “record secretly”.

      There’s been a number of cases establishing a citizen’s right to record public officials in the course of their duty:

      1. Yes, that is what I mean.

    3. This guy in Florida has done an outstanding job keeping public officials accountable for their actions:

      Florida has gold standard “freedom of information” statutes.

      You can walk into any government agency in Florida and, for example, request they print out the last two work-related emails they sent. If they ask “who the hell are you?” you can reply “that’s none of your business” and if they ask “why do you want to see those emails?” you can respond “none of your business, please print out that information. Provided nothing has to be redacted they can’t give you the runaround and are supposed to comply with your request.
      This also applies to private companies that are contracted by the government to provide services to the public.

      Not everyone is up to the mark regarding those statutes but if you know the law and insist they have to comply or there can be litigation. Check out this particularly hilarious example of that happening with Florida Senator Bradley:

      1. I’ve also read this Freedom of Information stuff is also the reason for Florida Man. Basically, these stories might be happening elsewhere but Florida doesn’t have certain privacy protections that prevent them from being printed.

        Don’t know if that’s true, but I can confirm to seeing a guy fuck a gator over in Snoqualmie, WA once.

        1. Man/woman/gator sexual congress, I guess in Florida it’s just inevitable.

          That guy Jeff Gray who runs the you tube channel “Honor Your Oath” is incredible. It’s just astonishing the reaction of public officials when he requires them to be accountable and follow the law, also how vindictive and petty they are. Jeff has three kids that attend his local public school. When he discovered they were not complying with the safety regulations by filling in the inspection sheets before every bus trip (one of his videos shows a bus driver not doing the checks and then backing out and crashing into a car next to the one he was filming them in) their reaction wasn’t “thanks for pointing this out” and disciplining the relevant staff they went after him and got a “no trespass” order against him that kept him away from the schools his kids attend that was prima facie unconstitutional. When he went and protested outside the school they arrested him for protesting. All unconstitutional, just using the law as lawfare. He filed suit and the charges were all tossed out. The cops there are not supposed to run your plates through DAVID unless they have cause to. He did a public records request for his own plates, the cops had ran them through DAVID almost 200 times.

      2. I’ve been watching him for a long time. Very good at what he does.

  2. Godammit now what am I supposed to do with all these new woodchippers I just bought?

    1. Just wait for the recordings. I’m sure you’ll find a use.

      Sorry I was so hostile in the other thread. I think I scheduled my depression treatments too far apart. Fortunately, they’re coming up next week, so I should be, well, at least less of a salty asshole after that.

      Ketamine infusion is a fucking miracle treatment, BTW.

  3. We are one step closer to being able to secretly record women pooping.

    1. Mahatma Gandhi approves of this idea!

    2. rip Chuck Berry.

  4. …subject only to reasonable time, place, and manner restrictions.

    Anytime, anywhere and anyhow. Loophole exploited!

    Obviously the public is still going to be arrested for recording police, who won’t really care if the case goes forward. The evidence will have already been deleted.

    1. This is why it’s important to have your recording be with a 4G network device, so the evidence is stored elsewhere. Like, in a foreign country.

  5. Government officials certainly deserve some privacy.

    Citation please. I do not not find that statement to be self-evident.

  6. I don’t understand how any law at any level can make recording a conversation that you are a party to illegal. It just doesn’t make sense.

    If you can recall and write down the conversation verbatim, nobody can say boo. And you can even hire actors to reenact the conversation and record that. So you can have a video version of your recollections.

    But actually recording it can be against the law? That makes no sense. In that instance, the only thing that a law banning recording the conversation accomplishes is to shed doubt on the true version of events. As long as you don’t have an actual recording, they still have some level of deniability. Pull out an actual recording and any denials will sound ridiculous.

    In other words, these laws only exist to protect the ability to lie.

    1. If you record some interaction with someone and then use it to invade their privacy or humiliat them in some way, say you record them losing their shit over the death of a relative or you having sex with them, then I think they have a legitimate claim to get a court to stop you from releasing the tape and obtain civil damages for any damage the release causes. But absent that, the only reason I could object to you recording our intereactions is because it prevents me from lying about what I said later.

    2. In other words, these laws only exist to protect the ability to lie.

      The laws were written by politicians to protect those they love the most; themselves.

  7. Bottom line, IMO, is that they (government actors) are public servants and the public, their masters, have the right to memorialize the conduct of their servants.
    Of course, this does not mean that we, the public, may interfere with the proper performance of their duties.
    Remember, public servants have duties, responsibilities and obligations; they have no rights.

  8. Makes me think of David Brin’s 1990 book, Earth. Not the actual plot, but the setting’s (a near-future Earth) handling of privacy.

    Basically, in a world where it’s trivially easy for everyone to record everything (you know, like ours! but in 1990, it was still science fiction) and after a few high profile scandals involving folks keeping things secret that they probably shouldn’t have (IIRC, it was never specified what it was, just alluded to), privacy is no longer really a thing. Assuming you have the gear for it, you can legally record anyone, anytime, anywhere, but there are restrictions on what you can do with the recordings.

    As an example, at one point an old man befriends three kids (I think they were some ethnic minority, but I don’t know for sure. I read the book like two decades ago), and has a lot of conversations and talks with them. When the old guy dies, his tell-all video diary of his interactions with the modern youth is posthumously released, in which he openly mocks, pities, and so-ons the kids. The kids have no legal rights to stop this “exploitation” of what they thought was a genuine friendship. But they also automatically get royalties from it.

    Anyway, I think of this because I think Brin was on the money here. Eventually recording is going to be so easy and ubiquitous that laws against recording others, with or without their consent, are going to fall down. The question will be what we do after.

    1. But that sort of thing has been going on since there was writing and publishing. Truman Capote for example went out to Holcolm Kansas and befriended everyone involved with the Clutter case, including the two murderers, only to later exploit the living hell out of the entire thing by writing In Cold Blood.

      1. my mom was friends w/the younger Clutter girl (cool story bro I know) and my grandfather’s insurance agency was in the movie (the real criminals bought the murder materials at the Rexall next door)

        1. I was born and grew up not that far from there. But never knew anyone connected with it. It has always been my understanding though that the people around that case really felt Capote exploited them and that the book was inacurate and slanderous of the Clutter family.

          It was a horrible and senseless crime. I have always had the feeling that the crime was even worse and more vicious than the book portrayed. That case will make anyone rethink their objection to the death penalty.

      2. Cool story.

        My entire point (beyond self-indulgent reminiscing of a book I read years and years ago) was that we’re increasingly reaching a time when the ease and ubiquitous of recording devices will mean that such “privacy laws” will be unsustainable, and that we’re going to need to address the moral and ethical way to maneuver in a world where there is no concept of “privacy”.

        That we’ve had cases like that before doesn’t address my concern that such things are going to become increasingly common, and while before we could largely ignore them, they will soon become un-ignorable.

        1. >>>they will soon become un-ignorable


  9. I too secretly recorded the child police, aka CPS, and published it on Youtube, it currently has 500K views.
    And, I also have a civil rights lawsuit against them, albeit for the very behavior the did against me, not as a third party viewing them. Currently the suit is on appeal in the 2nd Circuit court of appeals, just finished oral argument yesterday.
    With qualified immunity laws in place, I can’t say I will prevail, even though it is a clear instance of overstep by government officials, basically commandeering my parental rights.
    You can see the video here:
    If anyone is interested in the case, let me know, there is of course a whole backstory associated with it. Spoiler — I was found innocent of any CPS accusations, all of which were nonviolations to begin with.

  10. “Government officials certainly deserve some privacy.”

    No! Not while performing their public duties, they don’t. Conversations, emails, phone calls, computer files, personnel records…all should be PUBLIC records. They belong to we the people. Everyone should record every interaction with the state to preserve an objective record of the interaction.

  11. Does that “right” extend to a DAG recording the President?

  12. He said, She said…………I can’t determine the truth.
    So….Let’s go to the tape and review

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