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.