CA1: First sings lovesong to the First Amendment, and deals the police a loss

Jean v. MA State Police, No. 06-1775 upholds a preliminary injunction against the state police who wish to arrest a political activist that wants to post (on the internet) an audio and video recording of an arrest and warrantless search of a private residence, when (assuming for the sake of argument) the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded. The police argue that Mass. Gen. Laws ch. 272, § 99 prevents the posting of the recording of a nanny-cam. The poster had no part in the recording of the video and therefore Bartnicki v. Vopper, 532 U.S. 514 (2001) applies, and even though the Massachusetts statute is content-neutral, the First amendment interest in disseminating information is greater than the state’s interest in preventing illegal recording especially when the identity of the recorded is known. Believe it or not, Massachusetts state law (as upheld by the Mass Supreme Judicial Court) is some of the most restrictive in the nation when it comes to recording cops, even if they are caught doing things that are either illegal, or the electorate might want to make illegal.

Let's be clear: The Commonwealth of Massachusetts has aggressively litigated (and appealed) whether or not  people get to see this video!  The "cease and desist" letter can be read here.

The description of the state law is here:

The Massachusetts interception statute prohibits "willfully commit[ting] an interception," Mass. Gen. Laws ch. 272, § 99(C)(1), and “willfully disclos[ing] . . . the contents of any wire or oral communication, knowing that the information was obtained through interception,” id. § 99(C)(3). It likewise forbids “permit[ting],” “participat[ing] in a conspiracy to commit,” or acting as an “accessory to a person who commits” a violation of another subsection of the statute.   Id. § 99(C)(6). By willfully recording his arrest and then giving the recording to Jean, Pechonis arguably would have violated both section 99(C)(1) and section 99(C)(3). Thus, the police argue, by voluntarily accepting the tape from Pechonis and then disseminating it, Jean assisted, conspired, or served as an accessory to Pechonis’ violation of section 99(C)(3) and thereby independently violated section 99(C)(6).

The First is careful to note that it is assuming (without deciding) that the underlying recording was unlawful. Likewise, the First rejects the notion that merely being the first person to receive the tape puts a disseminator in a different position.

Media Law comments here and Gordon Firemark comments here.