Given the rash of canceled commencement speeches, it has been a tough season for free speech advocates. So a recent federal appeals court ruling that reaffirmed a First Amendment right to record a police traffic stop is reason to cheer.
The case goes back to the night of March 24, 2010, when Carla Gericke of Lebanon, N.H., was following an acquaintance in another car. A Weare police officer drove up behind them with lights flashing. When the officer started questioning the other driver, Gericke pointed a video camera at him. She was subsequently charged with violating New Hampshire’s wiretapping law, among other offenses.
Gericke was not prosecuted, but she sued the Town of Weare, its police department, and the arresting officers. She argued that police retaliated against her for exercising her First Amendment rights. The officers said they were entitled to immunity because there was no clearly established right to record the traffic stop.
The Court of Appeals for the First Circuit agreed with Gericke, relying on a prior First Circuit case upholding a plaintiff’s right to film police officers who were arresting a man on the Boston Common. In the earlier case, the court ruled that gathering information about government officials “serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’ ” With Gericke, the court said, the key question is whether a traffic stop puts the attempted filming “outside the constitutionally protected right to film police” — and concluded, “It does not.”
The ruling gave Gericke the right to pursue a civil rights action against the police, but, according to her attorney, Seth Hipple, the case was settled. The larger message, however, goes on, and it is encouraging: While police may not like to be filmed or recorded, they can’t use their law-enforcement powers to try to stop it.