In Glik v. Cunniffe, the First Circuit Court of Appeals held on August 26, 2011 that the First Amendment protects a private citizen’s right to openly record police officers carrying out their duties in a public place, and that arresting someone for doing so violates the Fourth Amendment. The decision was the first from a federal appeals court to squarely recognize that right, and its reasoning has since been adopted by most of the federal circuits.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
The Arrest on Boston Common
On the evening of October 1, 2007, Simon Glik was walking past the Boston Common when he saw three officers arresting a young man. He heard a bystander say something like “you are hurting him, stop.” Concerned about excessive force, Glik stopped roughly ten feet away and began recording video on his cell phone.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
After completing the arrest, one of the officers asked whether the phone was recording audio. When Glik said it was, the officer handcuffed him. The officers seized the phone and charged him with three crimes: violating the Massachusetts wiretapping statute, disturbing the peace, and aiding the escape of a prisoner.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
The criminal charges were later dismissed. In 2010, Glik sued the officers and the City of Boston under 42 U.S.C. ยง 1983 for violating his civil rights. The officers appealed, arguing that qualified immunity should shield them from suit. That appeal produced the opinion that became a national landmark.
The First Amendment Right to Record Police in Public
The central holding was direct. The court wrote that “the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within” the First Amendment’s protection.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
The reasoning drew on established free-speech principles. Gathering information about government conduct is part of democratic self-governance. Recording police creates a check on official power. The Boston Common, as a public park, is one of the most traditional forums for free expression, where the government’s ability to restrict speech is at its weakest. An officer making an arrest on a public sidewalk or in a park is performing a government function, and the public has a right to watch and document it.
The court also rejected any distinction between professional journalists and ordinary citizens. Press credentials, a media employer, or any other special status are not required to exercise the right to record government officials in public. The First Amendment protects a bystander with a phone the same way it protects a television news crew.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
Why the Arrest Violated the Fourth Amendment
The First Amendment holding gets most of the attention, but the Fourth Amendment ruling did the work of exposing the officers to liability. The Fourth Amendment prohibits arrest without probable cause. Because the wiretapping statute only criminalizes secret recordings, and Glik’s recording was openly made, the officers had no probable cause to believe a crime had been committed. His arrest violated the Fourth Amendment.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
The two constitutional holdings reinforced each other. The First Amendment established that Glik had a right to record. The Fourth Amendment established that the officers had no legal basis to arrest him for exercising it.
Why the Wiretapping Charge Failed
The most serious charge against Glik was violating Massachusetts General Laws Chapter 272, Section 99, the state’s wiretapping law. Massachusetts requires all parties to a conversation to consent before it can be recorded. The officers argued that Glik had intercepted their oral communications without consent.
The court rejected that reading. Under the statute, a recording qualifies as an “interception” only if it is done secretly, meaning the people being recorded have no knowledge it is happening.2Mass.gov. Wiretapping Glik stood ten feet away holding his phone in plain view. The officers themselves noticed the phone and asked him about it. Nothing was secret. Because open recording is not a secret interception, the wiretapping charge had no legal basis from the start.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011)
Why Qualified Immunity Did Not Protect the Officers
Qualified immunity shields government officials from lawsuits unless they violated a right that was “clearly established” at the time. Courts apply a two-part test: whether the facts show a constitutional violation, and whether the right was sufficiently clear that a reasonable officer would have known the conduct was unlawful.3Legal Information Institute. Qualified Immunity
The court found both prongs satisfied. Glik’s First and Fourth Amendment rights had been violated, and those rights were clear enough that no competent officer could have believed the arrest was lawful. The opinion described the officers’ assumption that they had a reasonable expectation of privacy on the Boston Common as “objectively unreasonable,” and called them “plainly incompetent” in their belief that filming them was a crime.1Justia. Glik v. Cunniffe, No. 10-1764 (1st Cir. 2011) That language is unusually harsh for an appellate opinion, and it sent a clear signal to police departments in the First Circuit.
Limits on the Right to Record
Glik established a broad right, not an unlimited one. The right to record police is subject to reasonable time, place, and manner restrictions, the same framework courts use for any form of expression in public spaces.
Officers can lawfully order you to move if your position physically interferes with an arrest, creates a safety hazard, or compromises an active investigation. Standing in a roadway to film a traffic stop gives officers a legitimate reason to direct you elsewhere. Recording near a confidential informant could justify an order to stop filming if continuing would endanger someone’s safety.
What officers cannot do is order you to stop recording simply because they do not want to be filmed. Holding up a phone and pressing record is not, by itself, interference. Any restriction must rest on a legitimate law enforcement justification and leave a reasonable alternative way to document what is happening. An officer who confiscates a phone or arrests someone solely for recording, with no interference beyond the recording itself, is on the wrong side of the rule Glik established.
How Other Federal Circuits Have Followed
Glik was the first federal appeals court decision to directly address the question, and other circuits have since reached the same conclusion. The Third Circuit held in Fields v. City of Philadelphia in 2017 that “the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public.”4Justia. Fields v. City of Philadelphia, No. 16-1650 (3d Cir. 2017) The Fifth Circuit followed in Turner v. Driver, recognizing a First Amendment right to record police “subject only to reasonable time, place, and manner restrictions.”5FindLaw. Turner v. Driver
The First, Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have all recognized the right to record police officers in public. That covers most of the country, and no federal circuit has reached the opposite conclusion. What began with one man holding a cell phone on the Boston Common has become settled constitutional doctrine across most of the United States.