by Garret Ean
Aug 31 2011
The federal first circuit court, which covers the New England area, has ruled that it is a clearly established first amendment right to record police performing their public duties, regardless of ambiguous wiretapping statutes. The ruling was in response to the arrest of Simon Glik, an attorney who was seized on the Boston Common for recording police. Massachusetts wiretapping laws are more strictly worded than the New Hampshire statute. The current NH statute makes it a misdemeanor to secretly record interactions that one is a party to, and only if there is an expectation of privacy on the part of the person being recorded. It is a felony to record audio as a third party without the knowledge of those being recorded, and again only if there is an expectation of privacy. Police will often misinform individuals that the New Hampshire law requires consent, and although the word does appear in the statute, the definition of “oral communication” in the statute does not mean simply a verbal utterance, but specifically an utterance made under an expectation of privacy. One cannot claim to have an expectation of privacy while in public, and especially if they have been informed that they are being recorded.
The Union Leader’s coverage of the ruling discusses changes currently in the works on the NH statute, which will clarify the right of individuals to record police. The bill will likely be expanded to include all public officials while on public duty. During the senate hearing on the bill earlier this month, legislators discussed a “Rodney King test” for the law. There was some controversy over whether the bill should require an individual to inform an officer that they are being recorded. Such language would have effectively made the Rodney King videotape an illegal recording, and RSA 570-A:6 makes illegally obtained recordings inadmissible as evidence in court. Though the Union Leader article states that such language would appear in the bill, a source working with senators on the wording has stated that it is unlikely such wording will appear in the final amended version.
Though there are still bugs to work out, the ruling by the first circuit court is certainly a victory for freedom of the press. It is worth noting that Keene’s chief of police Kenneth Meola is quoted as saying that the ruling changes nothing for his department, because recording police is not illegal. I attempted to get Concord Police to make a similar statement when I was forcibly prevented from recording an encounter in June 2010, but then-chief Robert Barry refused comment on the law. While senators continue to work on the verbiage, at least one NH videojournalist awaits trial for openly recording his own traffic stop in Weare.
The story from the Union Leader: