Yes, it’s five years old, but I found it very disturbing. To sum up: a man was stopped by some police officers. He recorded the proceedings, and filed a complaint against the officers. The officers were cleared, and he was charged and convicted of violating Massachusetts wiretapping law. He appealed, and his conviction was upheld.
As a dissenting judge pointed out, had the recording of the King beating taken place in Massacushetts, the maker could have faced prison.
It seems to me that it is a basic right for people to monitor the activities of their governmental agents, especially in when those agents are interacting with the person doing the monitoring. If we are not allowed to do so, we are left simply trusting the government to not abuse its power.
If the man recorded officers wrongdoings the outcome would likely have been different; since the officers were cleared there was no compelling reason for the man to have taped them.
Reading the decision, it appears the majority looked at the plain language of the statute and went no further. The plain language made it illegal for anyone to record any conversation without the consent of the people being recorded. The majority ignored most of the legislative history and comon sense to find that the statute covered all communication, not just those in which the person has a privacy interest. The majority does have a point when they said: “the problem here could have been avoided if, at the outset of the traffic stop, the defendant had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight.” However, I don’t think that overrides the obvious intent of the law to protect private communications.
I don’t see the majority as specifically protecting police officers, because the language of the law explicitly protects the privacy rights of all individuals, whether they are private citizens or police. Putting aside the selective prosecution idea, I don’t think the issue is “who watches the watchmen”, but rather a Court reading a statute way to broadly.
Actually I was only pointing out Dragonstar’s flawed logic. (Welcome to the boards Dragonstar).
Wire tap laws vary from state to state. In Texas it’s legal to record phone conversations and the like as long as one of the participants knows the recording is being done, and I’m OK with that. For your question specifically, I do think that an exception should be made in surreptitious recording of the actions of certain public officials while on duty.
It was taken to the MA supreme court. I have no idea whether there are any federal issues that the US SC would be willing to give cert on. Probably not. And it seems like if they were to do anything, they would have done it by now.
blaron
I’m not sure if that was directed towards me. I thought about discussing all the other problems I have with this law, but I wanted to keep the OP more focused. I most certainly do not think that the law is ok except for the cop problem. For instance, if I had a house in MA, and I set up a hidden camera system and catch a burgler in my house, I could go to prison if that camera has a mic. Apparently, those “hidden camera exposes” would also be illegal. You can’t record a Klan rally, even if it’s held in public. And to mix my cliches, if someone yells “fire” in a crowded theater, you can’t record him doing so. Basically, what it comes down to is that taking reasonable steps to protect my rights is itself a right. What harm comes from people being recorded? And does it really compare to the harm from cops knowing that that no matter what they do, it’s going to be their word against a criminal (and even if the person isn’t actually a criminal, the fact that they got in trouble with the police will make it seem like they’re a criminal)? I’m sure people are annoyed when they read unflattering things about theselves in the newspaper, but that doesn’t mean that a law prohibitng articles discussing anyone without their permission is okay.
Hamlet;
And Miranda’s problem could have been avoided if he had kept his mouth shut. The courts have long recognized that an element of intimitidation exists in any encounter with the police, even if not intentional. If this guy was concerned enough about police conduct to want to tape record the encounter, how is at all reasonable to expect him to tell the cops that he was recording them? That’s like telling a bank robber that you recognize him and once he leaves you’re going to turn him in. Furthermore, if people are required to inform the police everytime they record them, that destroys the deterrent effect.
Something I was wondering: this law doesn’t have any restrictions on where the recording is made. I would assume that a recording made outside MA would be outside their jurisdiction anyway. But it also has a provision outlawing te distribution of such a recording. Would this apply to recordings made outside of MA, but played in MA?
I wonder if that Massachusetts law would pass Constitutional muster. It’s well established that people (including, but not limited to the press) have the right to videotape or photograph anyone in a “public place.” That includes all public roads, sidewalks, parks, and even places that can be seen without magnification from those places.
I can’t see how audio recording is any different. And to make that distinction could reasonably be construed to infringe on the rights of a free press. After all, a television journalist can use a hidden camera, but a radio journalist couldn’t use a hidden tape recorder.
If I was the defendant, I would’ve appealed the MA statute on U.S. Constitutional grounds.
Lizard, you can only appeal on US Constitutional grounds if there’s a Federal Question involved. Here, there was a violation of MA law; there’s no Federal Question involved.
Oh, and bnorton, my logic is NOT flawed; in 49 states out of 50, precedent is set by case law and statute. Judges first look at the statutes, which are a group of rules formed by the state’s government; then they look at precedent.
Precedent is how other courts have interpreted that same statute in a similar situation. If, in district court (that’s the lowest court), a judge made a ruling, another district court judge may not be obligated to follow it since they’re at the same level. If the appellate court made a ruling, the lower court is obligated to follow it, if the state supreme court made a ruling, lower courts are obligated to follow it.
There are certain exceptions; if there’s a compelling argument that the law needs to be changed, then the attorney is free to make that argument; if the case can be distinguished from the controlling case (the case from which the rule was derived), the attorney is free to argue that his case is different and why that case should’t be followed.
In the event that the officers were convicted, the court would have been able to use its discretion to look the other way about the wiretapping, based on the evidentiary value. Here, the officers were not convicted of any wrongdoing, but the other man committed an illegal act.
Hamlet, statutes are meant to be interpreted based on the plain language they contain.
Er… basic statuory construction rules require that if the plain language of the law is unambiguous, and does not yield an absurd or contradictory result, the court may look no further in its analysis.
and from the opinion:
(emphasis mine)
I’m sorry, Hamlet, but I think the court did its job here. The problem must be fixed by the legislature, not the courts.
Your logic is flawed because you can’t go back in time. There is no way of knowing a priori whether an officer’s behavior will constitute a “wrongdoing”. Indeed how would a layperson even know when, in the course of an incident, a cop’s behavior went from rude to unethical or illegal?
Actually, he tied his argument directly to the First Amendment of the US Const. That would make it a federal question.
I don’t know if it would succeed, but if properly raised it would have established a federal question eligible for federal review.
I agree with Bricker, though.
The law, while poorly crafted, has been set by the legislature. It is their burden to fix (I say all of this with no knowledge on the MA Const.) not the courts. As long as it is consistent with the rights of the federal and state const., I don’t believe the court erred.
Sure is a dumb law, but dumb doesn’t mean unconstitutional.
Oh, I agree wholeheartedly. I am put off that the way the majority interpreted the statute, it would be illegal for news crews to record public events and for me to record MLK’s I Have A Dream speech. After reading the dissent, I think it is pretty clear that the legislature only meant the statute to cover private speech (that speech in which the person has a privacy interest), rather than all speech. That, and the somewhat “absurd and contradictory results” that the majority’s reading could lead to make me think they may have been a bit too deferential to the plain language.
No need to apologize, I very well may be wrong. And I don’t doubt the legislature will correct the problem (how that will help the defendant here, I’m not sure), but I think the legislature ignored the pretty clear legislative intent.
This makes sense to me, but it makes we wonder about those signs around bridges declaring it illegal to photograph the bridges.
Well, the Rodney King cameraman won’t be charged because he didn’t do it in MA. As for traffic light cameras, the question isn’t whether they’re constitutional, but whether they’re legal. Unless they have microphones, I don’t see how this law would affect them.