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This Just In: Glik Prosecution Dismissed

A few days ago we blogged about the motions hearing for Commonwealth v. Glik, the case in which a local lawyer was charged with wiretapping (among other charges) for videotaping Boston police making an arrest. (The op-ed Harvey and I wrote about the case, for the Massachusetts Lawyer's Weekly, is available here.) After hearing arguments, Justice Mark Summerville of the Boston Municipal Court took the motion under advisement and said he would decide the motion within a week's time. His order granting the motion to dismiss came down today. (We are currently having technical difficulties with our web hosting; the order will be available online soon.)

Summerville found that the wiretap law, 272 M.G.L. § 99, requires an element of secrecy, but Glik's recording "was not a secret recording and, therefore, not the type of conduct that the legislature sought to prevent with the wiretap statute," op. at *3. Similarly, Summerville rejected the Commonwealth's charge for disturbing the peace because it wasn't enough that Glik's videotaping of the arrest "distracted" the officers, because even if "the officers were unhappy they were being recorded during an arrest ... their discomfort does not make a lawful exercise of a First Amendment right a crime," id. In Massachusetts photography (apparently now including videography with accompanying audio) is protected speech, so the complaint against Glik had to go.

This is an important outcome, even if only for Glik -- remember that Summerville is a trial court judge, and the decision has limited if any precedential value on other courts in Massachusetts. And the decision is open to appeal by the district attorney, who, however, might not want to make "bad law" for the state by having a higher court rule on the matter. But in the context of this case, had Summerville denied the motion to dismiss, it would have reaffirmed the long-standing assumption that cops could prevent citizen oversight by slapping charges on anyone who they caught recording them. Instead, Summerville recognized what he saw as an implicit exception to the § 99 rule: where a citizen like Glik records the police out in the open, it's not illegal.

Of course, the ambiguity inherent in the law suggests that the wiretap statute still needs legislative attention in order to prevent future prosecutions like Glik's. Stay tuned for further developments about the Massachusetts "wiretapping" statute.

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