First Amendment protection for online posting of video/audio obtained unlawfully.

The First Circuit Court of Appeals today decided an interesting case concerning first amendment protection for the publisher of materials obtained unlawfully. In the case, Jean v. Massachusetts State Police video footage was recorded by a nanny-cam during an arrest and warrantless search of the arrestee's private residence.

After the arrest, the arrestee gave the tape to the Plaintiff, Mary T. Jean, a political activist, who then posted the video on her website.

Shortly thereafter, the police wrote to Jean to demand that the footage be taken down on grounds that it was illegal, and threatened Ms. Jean with prosecution if she failed to comply. The police later “clarified” their demand, restricting it only to the audio portion of the recording. (Under Massachusetts Law, it is unlawful ( a misdemeanor) to intercept or surreptitiously record a person or persons without consent Massachusetts General Law, Chapter 272, Section 99)

Ms. Jean sought and obtained a TRO, and later, an injunction against the police and attorney general. The police appealed.

On appeal, the First Circuit relied on the precedent established but the Supreme Court in Bartnicki v. Vopper, 532 U.S. 514 (2001),(which involved the replaying of an unlawfully intercepted cell phone conversation concerning a matter of public interest), and held:

“We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki,whose publication of an illegally intercepted tape was protected by theFirst Amendment. Jean's publication of the recording on her website is thus entitled to the same First Amendment protection.”

The case has obvious implications in both the ‘new' electronic media (bloggers and web page operators, ISPs, etc.), and the traditional media. Note, however, that this opinion doesn't suggest that the statute in question is unconstitutional, only that it can't be enforced against a third-party who comes into possession of the material lawfully. The statute CAN (presumably) still be enforced against the person or persons involved in the actual surreptitious recording

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