Judge Richard A. Posner is a legal icon who has had more impact on the development of the law. As the father of the Law and Economics movement, Posner’s writings are featured heavily in my classes as well as other classes around the country. While I disagree with him, I have tremendous respect for his scholarship and jurisprudence. However, a recent oral argument revealed a less flattering side of the former University of Chicago professor. Faced with an attorney from  the American Civil Liberties Union in a case involving the right of citizens to film police in public, Posner cut him off after 14 words and spoke derisively of the right of citizens and groups to engage in such protected conduct.

At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Poser was one of three judges and interrupted the ACLU after just 14 words, stating “Yeah, I know,. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.” Really? That happened to go to first amendment value of the proscribed conduct.

Posner continued: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers . . . I’m always suspicious when the civil liberties people start telling the police how to do their business.” Unbelievable. All these videos do is make a record of police conduct. The conduct is either abusive or nonabusive. Not filming an abusive arrest does little beyond protecting unlawful conduct. Otherwise the film vindicates the conduct of officers.

Illinois legislators and prosecutors have taken on the lead in fighting the right of citizens to observe and record the conduct of police. Posner’s view is thankfully not shared by other judges. Last month, the United States Court of Appeals for the First Circuit handed down a the opinion below in the case of Simon Glik, a lawyer who was arrested for filming officers in what he viewed as an excessive use of force. Here is the description of the court:

As he was walking past the Boston Common on the evening of October 1, 2007, Simon Glik caught sight of three police officers — the individual defendants here — arresting a young man. Glik heard another bystander say something to the effect of, “You are hurting him, stop.” Concerned that the officers were employing excessive force to effect the arrest, Glik stopped roughly ten feet away and began recording video footage of the arrest on his cell phone.
After placing the suspect in handcuffs, one of the officers turned to Glik and said, “I think you have taken enough pictures.” Glik replied, “I am recording this. I saw you punch him.” An officer then approached Glik and asked if Glik’s cell phone recorded audio. When Glik affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter alia, unlawful audio recording in violation of Massachusetts’s wiretap statute. Glik was taken to the South Boston police station. In the course of booking, the police confiscated Glik’s cell phone and a computer flash drive and held them as evidence.

He was then charged with violation of the wiretap statute, Mass. Gen. Laws ch. 272, § 99(C)(1), disturbing the peace, id. ch. 272, § 53(b), and aiding in the escape of a prisoner. The panel showed a far more balanced view than articulated by Posner in cutting off the ACLU’s lawyer in Illinois:

In our society, police officers are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. The same restraint demanded of law enforcement officers in the face of “provocative and challenging” speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. Absent such film, these allegations are often dismissed as unsupported by the citizens and denied by the officers.

As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering “who will rid us of these meddling citizens?,” they appear to have one jurist in Illinois not just ready but eager to step forward.

First Circuit opinion: Glik