|By Khairil Yusof (CC BY 2.0).|
Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts. A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition. A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests.
Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply. But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.
In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:
On the core constitutional issue, the Court holds that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions. Because Section 99 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.
O'Keefe speaks at 2018 Student Action Summit, West Palm Beach, |
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).
- "landlords renting unsafe apartments to college students;
- "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
- "'protest management' activities by both government officials and private individuals related to Antifa protests; and
- "interactions with Harvard University officials to research its endowment and use of federal funds."
The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service. Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.
As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable. A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.