First Amendment Prevents Law Enforcement Officials From Prosecuting the Posting of Illegal Recording
September 26, 2007
Damon M. Seligson- Boston
The U.S. First Circuit Court of Appeals recently ruled that the Constitution prevents law enforcement officials from interfering with a person’s online posting of an audio and video recording even if she had reason to know that another person had made the recording illegally.
In Jean v. Massachusetts State Police, the appeals court refused to overturn a lower court’s preliminary injunction that prohibited officials from interfering with the plaintiff’s posting of the recording, which depicted an arrest and warrantless search of a private residence.
The underlying case involved Mary T. Jean, a political activist in Worcester, Massachusetts, who maintained a Web site of information critical of former Worcester County District Attorney John Conte. In October 2005, Paul Pechonis contacted Jean through her Web site and told her that on September 29, 2005, eight armed state police troopers arrested him in his home on a misdemeanor charge. He met the officers at his front door and allowed them to handcuff him. The officers then conducted a warrantless search of the entire house. A motion-activated camera captured the entire incident on tape.
Pechonis gave a copy of the tape to Jean, who posted it on her Web site along with commentary critical of Conte. After learning of the posting, state police notified Jean in writing that her posting of the tape violated Mass. Gen. Laws. Ch. 272, § 99, subjecting her to prosecution for a felony. Police gave Jean 48 hours to remove the recording from her Web site or face prosecution. Six weeks later, the state police, in a second clarifying letter to Jean, informed her that she would not be in violation of the statute if she removed the audio portion of the recording from her Web site.
Relying on the First Amendment, Jean filed a complaint in federal district court in Massachusetts seeking a temporary restraining order and a preliminary injunction against the state police and attorney general. In granting a preliminary injunction, the district court relied on the landmark 2001 decision in Bartnicki v. Vopper, in which the U.S. Supreme Court held that the First Amendment protected the broadcast of an intercepted cell phone conversation concerning a matter of unquestionable public concern. The Bartnicki court held that although the original interception was unlawful, the First Amendment protected the broadcaster, who was given the recording lawfully.
The district court in Jean’s case in Massachusetts noted that, as in Bartnicki, she had played no part in the recording of the video. She therefore had “obtained the tape lawfully,” and the videotape pertained to a “matter of public concern,” according to the court.
On appeal, First Circuit undertook to balance the “interests in publishing matters of public concern” versus “privacy concerns.” Based on this analysis, the First Circuit affirmed the entry of the preliminary injunction. Writing for the panel, Judge Kermit Lipez concluded that the case was “materially indistinguishable” from Bartnicki, and the government interests in preserving privacy and deterring illegal interceptions were “less compelling” than in Bartnicki.
This case has clear implications for the rights of journalists and others to publish and broadcast information of legitimate public concern that they lawfully obtain.
For more information, email Damon M. Seligson at Damon.Seligson@hklaw.com or call toll free, 1-888-688-8500.