The First Amendment protects the public’s right to use electronic devices to secretly audio record police officers performing their official duties in public. This is according to an amicus brief EFF filed in the U.S. Court of Appeals for the First Circuit. The case, Martin v. Rollins, was brought by the ACLU of Massachusetts on behalf of plaintiffs who are challenging the constitutionality of the Massachusetts anti-eavesdropping statute, which prohibits the secret audio recording of all conversations, even those that are not private.

The First Circuit had previously held in Glik v. Cunniffe (2011) that Glik had a First Amendment right to record police officers arresting another man in Boston Common. He had used his cell phone to openly record both audio and video of the incident. The court also held that this did not violate the Massachusetts anti-eavesdropping statute.

EFF’s amicus brief argues that people frequently use modern electronic devices to record and share audio and video recordings, especially on social media. These often include newsworthy recordings of fatal police shootings and other police misconduct. Such recordings facilitate police accountability and enhance the public discussion about police use of force and racial disparities in our criminal justice system.

EFF’s amicus brief also argues that audio recordings can be particularly helpful in chronicling police misconduct, providing more context beyond the video images, such as when a bystander audio recorded Eric Garner screaming, “I can’t breathe.” Additionally, being able to secretly audio record police officers performing their official duties in public is critical given that many officers retaliate against civilians who openly record them.

In addition to the First Circuit’s Glik decision, five other federal appellate jurisdictions have upheld a First Amendment right to record police officers performing their official duties in public: the Third, Fifth, Seventh, Ninth, and Eleventh Circuits. EFF wrote an amicus brief in the Third Circuit case, as well as in a pending case in the Tenth Circuit and a case in the Northern District of Texas that focused on the First Amendment right to record emergency medical personnel and other first responders.

The First Circuit reached the right decision in Glik, and we hope the appellate court will take this opportunity to further strengthen the right to record police officers performing their official duties in public by holding that secret audio recording is also protected by the First Amendment.