Regrettably, the public service of our “public servants” sometimes leaves much to be desired. Just ask George Thompson, who claims that he was verbally abused, arrested, and locked up overnight for exercising his First Amendment right to film a profane police officer from his own front porch.
According to The Daily Caller, Thompson, a 51-year-old citizen of Fall Rivers, Massachusetts, was minding his own business on his porch when he observed Officer Thomas Barboza sitting in a patrol car, engaged in a cell phone conversation unfit for public consumption. Thompson claims that he confronted Barboza about his language on a previous occasion: “I said to him, ‘Why don’t you cool it with the language there? He says, ‘Why don’t you shut the [expletive] up and mind your own [expletive] business?’”
This time, Thompson used his cell phone to record the officer’s behavior. After Barboza noticed, he demanded that Thompson stop recording. When Thompson refused, Barboza arrested him for violating Massachusetts’ wiretapping law, calling him a “f—ing welfare bum” for good measure. Thompson spent the night in jail. At some point, his video was deleted.
If Thompson’s only “crime” was videotaping a public servant in a public place from his own front porch and if the police deleted his video, he wasn’t just the victim of excessively harsh treatment — his constitutional rights were violated.
In the first place, Thompson appears to have done nothing illegal. Massachusetts law does prohibit secret recording. But in Commonwealth v. Jackson (1976), the Supreme Judicial Court of Massachusetts held that a recording is “secret” unless the subject has “actual knowledge” of the fact of recording. Because Barboza had actual knowledge of Thompson’s recording, that recording was in no sense secret.
Further, Thomas had a constitutional right to be present, and to do what he did. In Glik v. Cuniffe (2011), the First Circuit Court of Appeals ruled that citizens have a protected First Amendment interest in recording police officers in public places, subject to reasonable time, place, and manner restrictions. There is nothing about the time, place, or manner of Thompson’s recording activities that would defeat that interest.
Though unconstitutional, such police conduct is not unheard of. We recently wrote about Brandy Berning, who filmed an officer during a traffic stop and ended up in jail. Last year, we wrote about Heather Thomas, who used a cell phone to videotape the arrest of her husband Donald on her own property. Although she did not interfere with police in any way, an officer took the cell phone from her and later commanded her to delete the footage.
It is encouraging that the local authorities are taking the matter seriously. Police Chief Daniel Racine has launched an investigation to determine who deleted the footage, and said the guilty party will face justice: “If a Fall River police officer erased that video, he’s fired and I would suspect the district attorney would take out charges.”
We look forward to seeing Racine follow through on his commitment, both because such wrongdoing deserves to be punished and because that punishment will deter others. Going forward, citizens should confidently assert that we have a right to record and demand that it be respected. The way police conduct their public business is the public’s business, too.
