(The following should not be construed as legal advice.)
New England states with strict ‘wiretap’ laws have been put on notice by a federal appeals court that they cannot stop people protecting themselves by secretly recording police interactions in public.
The federal First Circuit, covering Maine, Connecticut, Massachusetts, New Hampshire, and Rhode Island ruled on a statute in The Bay State. Massachusetts’ Supreme Judicial Court had previously upheld a statute in the circumstances now ruled unconstitutional - a potential prosecution for secretly recording a police interaction.
The court’s 72-page opinion said secretly recording police in public while officers perform their duties was protected by the First Amendment. It was announced by a three-judge panel that included David Souter, former United States Supreme Court associate justice who retired from the high court in 2009. It upholds a district court decision supporting campaigners who wanted a guarantee that they would not be prosecuted for secretly recording police during any stop. The First Circuit weighed in after that was appealed by Rachael Rollins, the apparently ‘progressive’ newly-elected prosecutor for Suffolk county, which includes Boston.
Maine is a so-called one-party consent state - allowing people to record their own phone calls or in-person conversations, as long as at least one person is aware that it is happening. So, Maine is unaffected by this decision. However, other states, such as New Hampshire, have ‘two-party‘ consent laws that mean everyone has to be aware a recording is being made and consent to it. This decision appears to allow people in places like The Granite State to challenge a police-only narrative by getting their own record legally. However that is still subject to a court deciding that specific issue and the application of any other state’s individual statute as it dealt specifically with Massachusetts.
The case, Martin v. Rollins, was brought by the American Civil Liberties Union of Massachusetts. The court said the commonwealth’s statute was unconstitutional ‘as applied’ to the two campaigners who brought the case, allowing them to make recordings as a carve out from the statute’s broad wording.
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