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from the double-tapping-Glik dept

More than a decade ago, Simon Glik was arrested by Boston police officers for the "crime" of recording them in public. This was made possible by a law passed in the mid-60s, which turned Massachusetts into a "two-party" recording state. Unless the person doing the recording has the consent of the person being recorded, it's a violation of the state's wiretap law.

Glik successfully challenged this law, securing an Appeals Court ruling that stated the law was unconstitutional as applied to the recording of police officers in public places. This didn't immediately end the bogus arrests. Five years later, the government was taken to court again for enforcing this law in a way the Appeals Court said it couldn't. Also along for the ride was James O'Keefe's "Project Veritas," which argued the law was unconstitutional when applied to any public official in nearly any setting.

The federal court said the Glik decision applied to the recording of police officers, whether surreptitious or not. It pointed out the Boston Police Department had issued new guidance based on the Glik decision, but falsely portrayed acceptable recordings as limited to those cops knew were happening. Not so, said the court. Even surreptitious recordings of cops in public spaces are protected by the First Amendment. It didn't come to the same conclusion about Project Veritas' arguments, finding the law was not overbroad when it applied some minimal restrictions to recording public officials.

The Commonwealth still wants to abuse its bad law. It appealed this decision, sending it to the same court that had found its application of the law to the recording of cops unconstitutional nearly a decade ago. The First Circuit Court of Appeals says [PDF] the government's arguments are no better nine years later. Surreptitious recordings of police officers performing their public duties does not interfere with their work. Citizens are under no obligation to tell police officers they're being recorded. The government's interpretation of the law would just provide cover for misconduct.

Because the recording here will not be done in plain sight or with the actual knowledge of the officers whose words will be recorded, they will not even be aware that such recording is occurring. For that reason, they will not be on specific notice of a need to take precautions to ensure that words that they do not wish to have recorded are not. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties.

Citizens deserve transparency and accountability. And if law enforcement agencies aren't willing to provide that on their own, citizens have the Constitutional right to gather information about police activities.

Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. [...]

Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.

The Commonwealth also raised the argument that people interacting with police might be recorded without their consent. Again, the court points out there's minimal expectation of privacy in conversations with cops in public areas. While some citizens may not want to be recorded, talking to officers in the earshot of other members of the public is hardly a private conversation. And the precedent cited by the DA is completely off base.

In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases.

[...]

But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how -- across the board -- the proposed secret recording results in "substantial privacy interests . . . being invaded in an essentially intolerable manner."

Project Veritas' case, however, fails to move the court. Veritas wanted the law invalidated in its entirety, claiming it deterred it from recording public officials and those interacting with public officials without limitation. But the examples it provided of speech is was being "deterred" from engaging in was far more limited than the relief it sought.

Project Veritas alleged in connection with this challenge that it seeks to record "government officials who are discharging their duties at or around the State House in Boston and other public spaces" in hopes of learning those officials' unvarnished thoughts about "immigration policy and deportation"; "to capture whether antifa public events and protests are peaceful, whether police or other public officials interactions with antifa members are non-violent," and to otherwise report on those events; and that its "journalists would have attended" "a large public event" related to "the ongoing PVA 'antifa' investigation" but for Section 99.

Thus, Project Veritas gives no indication that it intends to investigate any and every type of civil servant, no matter their function or place in the governmental hierarchy. But, if we take Project Veritas at its word and construe the term "government officials" as broadly as "officials and civil servants," that category covers everyone from an elected official to a public school teacher to a city park maintenance worker.

The court says it's not willing to completely upend the law when narrower reading might both serve the First Amendment and the state's governmental interests. This plaintiff asks the court to consider all recordings equal. The court says that's not realistic.

The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of government official who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds.

Veritas' case will go back to the court for some additional exploration -- but only if, given a third chance to write a complaint, the activist group actually finds something worthy of discussion by the court. But the ruling here is clear: recording cops in Massachusetts isn't a crime, no matter how much Massachusetts wishes it would be.

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Filed Under: 1st amendment, 1st circuit, civil rights, free speech, massachusetts, recording police, simon glik

View post:
First Circuit Appeals Court Reaffirms Its 2011 Decision: The First Amendment Protects The Recording Of Cops - Techdirt

New Years Eve is going to be different this year.

Bars, restaurants and entertainment venues are under heavy restrictions from Gov. Roy Cooper.

Plus, Cooper has imposed a 10 p.m. curfew on everyone in the state, which might seem to mean that everyone should be at home, or at least wherever they plan to spend the night, long before midnight.

But the curfew imposed by Cooper does have a few, or actually many, exceptions, and if you are thinking about staying out past Coopers curfew, it might be heartening to know that at least in Greensboro none of Coopers 183 executive orders are being enforced.

The curfew order itself has enough loopholes to drive even the largest SUV through without even pulling in the mirrors. Some good news, particularly for those trying to celebrate New Years Eve in a more traditional manner, is that one of the exceptions to the curfew is to travel to and from an establishment that sells mixed drinks to go. Also, although bars and restaurants have to stop selling alcoholic beverages to customers at 9 p.m., to go mixed drinks can be sold up until the normal 2 a.m. deadline.

So, if at 11 a.m. you should decide that a martini from your favorite bar is what you need to usher in the New Year, the regulations wont allow you to go to that bar, order and drink said martini, but you can go and order a martini to go.

You, of course, can also go out after 10 p.m. not only to buy mixed drinks but to buy groceries, take-out food, medical care, fuel, health care supplies and social services, not to mention to go to or from work. Also, using any kind of shared transportation such as Uber and taxicabs or traveling to the airport, train station or bus station is exempt from the curfew restrictions, as is traveling to care for someone or a pet.

Mass gatherings are prohibited for more than 10 people indoors or 50 people outdoors, which seems like it would eliminate most New Years Eve parties, but Executive Order 18,1 also under Exemptions, states, Worship, religious, and spiritual gatherings, funeral ceremonies, wedding ceremonies and other activities constituting the exercise of First Amendment rights are exempt from all the requirements of this Executive Order.

The First Amendment, along with freedom of religion, freedom of speech and freedom of the press, also protects the right of the people peaceably to assemble. The courts have interpreted this to mean any group that gathers or assembles including for social occasions is protected by the First Amendment.

So Executive Order 181 both states that people cant gather in groups of more than 10 indoors or 50 outdoors and that the right of people to gather as protected in the First Amendment is exempt from that regulation.

Continued here:
New Year's Eve In The Year Of The Coronavirus - The Rhino Times of Greensboro - The Rhino TImes

Remember, I was recently cautioned, its a holiday season write less about darkness, more about light.

Ill write about light. Ill write that if its true that Sunlight is said to be the best of disinfectants, as Justice Brandeis wrote, then we must be vigilant in assuring that our Public Square remain free of corruption and autocracy though the constant application of Brandeis disinfectant.

Through the Beauty of Light.

In 1787, during a parliamentary debate in London as to whether the British House of Commons should open itself to the press, Edmund Burke said that while there were Three Estates in Parliament in the Reporters Gallery yonder, there sat a Fourth Estate more important far than they all.

Burkes recognition of the press as the Fourth Estate was the first time it had been so institutionalized.

That same year, in Philadelphia, The United States Constitution was adopted and, four years later, the Bill of Rights, headed by the First Amendment which declared that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Enshrined in the Constitution were our Three Estates Congress, Executive, Judicial whose powers are vested by our Constitution.

Our Fourth Estate, more important far than they all watchdog, witness for the people, disinfectant was enshrined in the First Amendment.

More important far than they all.

Journalist Glenn Greenwald has written that A key purpose of journalism is to provide an adversarial check on those who wield the greatest power by shining a light on what they do in the dark, and informing the public about those acts.

Sunlight as disinfectant the Fourth Estate its agent has been institutionalized since our very founding and in general its worked out well.

It worked for Ida Tarbell when she exposed the illegal monopoly controlled by John D. Rockefeller and Standard Oil.

It worked when the press revealed that Senator Joseph McCarthys charges against the army to be false, ending McCarthys witch hunt.

It worked when Sy Hersh exposed the massacre of 109 Vietnamese civilians at My Lai.

It worked when CBSs Walter Cronkite told the American people: For it seems now more certain than ever, that the bloody experience of Vietnam is to end in a stalemate that the only rational way out then will be to negotiate, not as victors, but as an honorable people who lived up to their pledge to defend democracy, and did the best they could.

It worked when the Washington Post and New York Times published the Pentagon Papers after the Supreme Court denied President Nixons petition to suppress publication.

It worked in 2013 in exposing NSAs illegal mass surveillance of American citizens, leading to congressional reforms to ensure the civil liberties of all citizens; leading to, as the ACLUs Jameel Jaffer stated the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check.

Thats what the press does.

In 2016 records The Panama Papers were obtained from an anonymous source by the German newspaper Sddeutsche Zeitung, which shared them with the International Consortium of Investigative Journalists (ICIJ), which shared them its international partners who published them revealing the complex and secretive ways the corrupt rich including 12 national leaders exploit offshore tax havens to conceal their corruption.

Shining a light on what is done in the dark that is what the press does and it does it well.

In 2020, when the truth about the virulence of the novel coronavirus was being withheld in America it took journalist Bob Woodward of Watergate fame to release the COVID-19 tapes and show how Americans were being put at risk through government deception.

These are difficult days for a free press. Buffeted by economics interests on one side especially in small markets and by extreme right-wing interests living in a media ecosystem driven by parochial, xenophobic, supremacists interests on the other, it appeared for a short time that what has been derisively called fake news was going to be supplanted by non-sourced, extremist social media platforms operating on Facebook and Twitter and appearing on faux-news sites like OAN, NewsMax, and QAnon.

Thats not going to happen. The Fourth Estate is getting better, bigger, more aggressive especially at the national level and its my prayer that revival will extend to local markets as well.

For example, last year the Washington Post expanded its investigative journalism capacity by adding 10 staff positions, including in foreign, sports, climate and environment reporting and this week it announced it will further expand its global capacity by creating hubs in Europe and Asia and expand its international presence to 26 locations and will also expand its domestic coverage as well.

Its important to recognize that such light helps us to see, to discern the truth of a matter not by how an event fits into our preconceived order but by facts explaining its presence.

An unfettered free press, supported by the testimony of courageous citizens, is essential to our very existence.

In a recent khutbah, sermon, that appeals to our common humanity Dr. Khaled Abou El Fadl preached, ...To put it simply, wherever you find despair, anxiety, anger or hate, the light is absent. The very nature of Gods light is repose, peace and a state of happiness. Where there is love, there is that light. Where there is happiness, there is that light. Where there is suffering, there is the absence of light Where human beings cause harm, there is the absence of light

Where human beings cause despair, suffering and harm that is where the Fourth Estate must stand shining a light on what is done in the dark.

It is through the beauty of such light we remain free.

Read more here:
Robert Azzi: A free press is there to shine a light - Concord Monitor

The Federal Communications Commission allows a transfer of licenses after the Spanish broadcaster comes to a deal with the Department of Justice to resolve national security concerns.

If the U.S. government regulated streamers as it does broadcasters, would the Trump Administration stand better ground in objecting to Chinese influence over TikTok? The answer is undoubtedly yes, but if proof is required, check out a decision that was quietly made by theFederal Communications Commission just before Christmas. As TikTok wages a thus-far-successful fight against theU.S. government for attempting to impede the app over national security concerns, Univision has gone in a different direction. According to an opinion from the FCC's Media Bureau, Univision can exceed 25 percent foreign ownership and transfer licenses thanks to a recent deal the Spanish broadcaster made with the Justice Department. The agreement, which became public earlier this month but has until now remained under the radar, allows for much greater oversight in how Univision handles data and indeed its larger business.

Back in February, Univision struck a deal to sell a controlling stake to private equity firm Searchlight Capital, which according to filings, is controlled by partners in United States, Canada, and Germany.Mexican TV giant Televisa, which supplies much of Univision's programming, would retain its significant stake as well. The dealmaking had Univision seeking authorization from the FCC to exceed the 25 percent foreign investment benchmark with aruling permitting up to 100 percent aggregate foreign investment. That was on the table because of FCC decisions near the beginning of Ajit Pai's term as chairman that opened the doorto full foreign ownership of U.S. broadcast stations.

In this instance, Univision's move to transfer control of licenses and its petition for a declaratory ruling ran into opposition from various Hispanic groups as well as theNew York and California Attorneys General, who voiced concern howallowing Univision to become foreign-ownedwould result in less competition, diversity, and localism, contrary to the public interest.

There was also an objection filed bythe Media Research Center, which pointed to Univision's ties with the Clintons and alleged Televisa's links to Mexico's Revolutionary Institutional Party.

In the FCC's Dec. 23 opinion (read here), theMedia Bureau shrugs that off. "The Commission does not involve itself in content-based programming decisions," states the decision. "Indeed the Commission has repeatedly recognized that a licensee has broad discretion based on its right to free speech under the First Amendment to choose the programming that it believes best serves the needs and interests of the members of its viewers."

Other than forcing divestitures of some Puerto Rico stations (which Univision agrees to do), the FCC doesn't see any good reason to stand in the way of Univision's deal with foreigners, especially in light of the deal that Univision hasmade with the Justice Department.

That deal is remarkable in light of the legal fight between the U.S. government and TikTok.

According to the terms (read the full agreement below), Univision agrees to maintaina security officer who will have access to Univision's business information and be available to answer any concerns raised by the government. Additionally, Univision agrees to screen new employees given access to data and provide 30 days of notice to the Justice Department if access is providedto any foreign government, person, or entity. Furthermore, Univision agrees to provide additional notice to the DOJ of any material business change including corporate structure changes, business model changes, and even a change in headquarter location.

Univision also consents to an annual report concerning compliance and allow the government to interview its employees, among more commitments.

A day before the FCC's media bureau granted approval, Univision attorneys met with an advisor toCommissioner Geoffrey Starks to discuss the benefits of allowing greater foreign investment in U.S. stations. The lawyers touted how access to broader sources of capital would allow U.S. broadcasters to compete on a level playing field with other content providers and distributors.

Today, Univision celebrated closing its deal.

See the article here:
Univision Agrees to Greater Oversight to Win Government Nod on Foreign Ownership - Hollywood Reporter

Senator McGuire has reintroduced SB 98, which will extend crucial protections to members of the press as they enter and report on events protected by the First Amendment.

Freedom of the press is foundational to our country. It strengthens our democracy by providing transparency, keeping a check on government, and informing our everyday decisions. But this freedom is under assault here in the United States.

Intentional attacks or detainments of reporters and members of the press in the United States in 2020 increased significantly, particularly during the nationwide anti-racism protests according to the US Press Freedom Tracker, the Freedom of the Press Foundation, and the Committee to Protect Journalists.

At least 117 verified cases of journalists being arrested or detained have been documented this year, a 1200% increase over 2019. More than 36% ofthese arrests and detainments were accompanied by an assault (source: Freedom of the Press Foundation).

In 2020, reporters have been hit by rubber bullets, struck with batons, sprayed with tear gas, and detained, all while performing their critical role of documenting and informing the public of current events.

Members of the press risk their personal health and safety each time they attend protests or rallies to get the public the information they need and deserve. Rubber bullets, tear gas, and detainment cannot be the new norm for members of the press. California must lead the way to ensure the freedom of the press and the First Amendment are protected and held to the highest standard, Senator McGuire said.

SB 98 will ensure that journalists are protected as they attend demonstrations, marches, protests, and rallies. It will prohibit law enforcement officers from obstructing, detaining, assaulting, or otherwise preventing the press from fulfilling their constitutional mandate in reporting on these events.

Additionally, the bill mandates that reporters can challenge their detainment or lack of access by working with law enforcement management on scene. This provides a necessary safety net to reporters who are not granted access or intentionally detained or mistakenly detained.

Recent police action demonstrates that these statutory protections are critical to ensure our democratic system has access to newsworthy information to inform the discussion on the crucial issues that California and the nation face.

During protests throughoutCalifornia,numerous reporters were injuredduringincidents with law enforcement.Some examples:

While California law allows reporters and members of the press to enter natural disaster emergency areas for the purpose of gathering information, these protections do not expressly extend to protests. SB 98 provides these protections.

A version of this legislation passed the Senate and Assembly last legislative session, but was vetoed by the Governor. Senator McGuire, the bills co-authors and support coalition believe the need to protect the first amendment and the press freedom is greater than ever and will be working with the Governor to gain his support this year.

The legislation is supported by the California News Publishers Association, The California Broadcasters Association, California Black Media, Impremedia, Ethnic Media Services and the First Amendment Coalition.

The legislation is co-authored by: Senators Wiener, Gonzalez, Portantino and Assemblymembers Wicks and Carrillo.

View original post here:
Senator McGuire Reintroduces Legislation to Protect Press and Journalists From Being Intentionally Attacked and Detained - Redheaded Blackbelt