Simon Glik was arrested for using his cell phone’s digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts’s wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.
In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly-established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.
I.
We recite the pertinent facts based upon the allegations of the complaint,
Asociación de Subscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Flores Galarza,
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 *80 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 1 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.
Glik was eventually 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, id. ch. 268, § 17. Acknowledging lack of probable cause for the last of these charges, the Commonwealth voluntarily dismissed the count of aiding in the escape of a prisoner. In February 2008, in response to Glik’s motion to dismiss, the Boston Municipal Court disposed of the remaining two charges for disturbance of the peace and violation of the wiretap statute. With regard to the former, the court noted that the fact that the “officers were unhappy they were being recorded during an arrest ... does not make a lawful exercise of a First Amendment right a crime.” Likewise, the court found no probable cause supporting the wiretap charge, because the law requires a secret recording and the officers admitted that Glik had used his cell phone openly and in plain view to obtain the video and audio recording.
Glik filed an internal affairs complaint with the Boston Police Department following his arrest, but to no avail. The Department did not investigate his complaint or initiate disciplinary action against the arresting officers. In February 2010, Glik filed a civil rights action against the officers and the City of Boston in the United States District Court for the District of Massachusetts. The complaint included claims under 42 U.S.C. § 1983 for violations of Glik’s First and Fourth Amendment rights, as well as state-law claims under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 111, and for malicious prosecution.
The defendants moved to dismiss Glik’s complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that the allegations of the complaint failed to adequately support Glik’s claims and that the officers were entitled to qualified immunity “because it is not well-settled that he had a constitutional right to record the officers.” At a hearing on the motion, the district court focused on the qualified immunity defense, noting that it presented the closest issue. After hearing argument from the parties, the court orally denied the defendants’ motion, concluding that “in the First Circuit ... this First Amendment right publicly to record the activities of police officers on public business is established.”
This timely appeal followed. Denial of a motion to dismiss on qualified immunity grounds, unlike denial of a typical motion to dismiss, is immediately appeal-able on interlocutory review.
Garnier v. Rodriguez,
II.
Long-standing principles of constitutional litigation entitle public officials to qualified immunity from personal liability arising out of actions taken in the exercise of discretionary functions.
See Harlow v. Fitzgerald,
The latter analysis of whether a right was “clearly established” further divides into two parts: “(1) ‘the clarity of the law at the time of the alleged civil rights violation,’ and (2) whether, given the facts of the particular case, ‘a reasonable defendant would have understood that his conduct violated the plaintiff[’s] constitutional rights.’ ”
Barton,
On appeal, appellants 2 argue that they are entitled to qualified immunity on each of Glik’s constitutional claims and, accordingly, that the district erred in denying their motion to dismiss. 3 Their arguments *82 track the two parts of the “clearly established right” analysis. With regard to the First Amendment claim, appellants dispute the clarity of the law establishing a First Amendment right to record police officers carrying out their public duties. On the Fourth Amendment claim, appellants contend that, in light of Massachusetts case law interpreting the state’s wiretap statute, a reasonable officer would have believed there was probable cause to arrest Glik, and thus would not have understood that the arrest would violate the,Fourth Amendment. We examine each argument in turn.
A. Immunity from Glik’s First Amendment Claim
1. Were Glik’s First Amendment Rights Violated?
The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.
It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”
First Nat’l Bank v. Bellotti,
The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.”
Mills v. Alabama,
In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In
Iacobucci v. Boulter,
Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts.
See, e.g., Smith v. City of Cumming,
It is of no significance that the present case, unlike
Iacobucci
and many of those cited above, involves a private individual, and not a reporter, gathering information about public officials. The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press.
Houchins,
To be sure, the right to film is not without limitations. It may be subject to reasonable time, place, and manner restrictions.
See Smith,
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,
2. Was the Right to Film Clearly Established?
Though the “clearly established” inquiry does “not require a case directly on point,”
al-Kidd,
We find unavailing the two cases principally relied upon by the appellants in arguing that the First Amendment right to film was not clearly established at the time of the arrest, both of which were decided after Glik’s arrest. The first is an unpublished per curiam opinion from the Fourth Circuit that summarily concludes, with no discussion of the facts or relevant law, that the “right to record police activities on public property was not clearly established in this circuit at the time of the alleged conduct.”
Szymecki v. Houck,
The second case appellants cite is a Third Circuit opinion finding the right to film not clearly established in the context of a traffic stop, characterized as an “inherently dangerous situation[ ].”
Kelly v. Borough of Carlisle,
In summary, though not unqualified, a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment. Accordingly, we hold that the district court did not err in denying qualified immunity to the appellants on Glik’s First Amendment claim.
B. Immunity from Glik’s Fourth Amendment Claim
1. Were Glik’s Fourth Amendment Rights Violated?
The existence of a Fourth Amendment violation on the facts alleged here turns on a question of Massachusetts law. The Fourth Amendment requires that an arrest be grounded in probable cause,
Martínez-Rodríguez v. Guevara,
Massachusetts’s wiretap statute makes it a crime to “willfully commit[ ] an interception ... of any wire or oral communication.” Mass. Gen. Laws ,ch. 272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute sweeps more broadly than comparable laws in other jurisdictions, in that its prohibition is not restricted to the recording of communications that are made with a reasonable expectation of privacy.
See Commonwealth v. Hyde,
The relevant question, then, is whether, on the facts alleged in the complaint, Glik “secretly” videotaped the appellant officers.
6
The Supreme Judicial Court has held that a recording is “secret” unless the subject has “actual knowledge” of the fact of recording.
Commonwealth v. Jackson,
Commonwealth v. Rivera,
The complaint alleges that Glik “openly recorded] the police officers” with his cell phone, and further that “the police officers admitted Mr. Glik was publicly and openly recording them.” On its face, this conduct falls plainly outside the type of clandestine recording targeted by the wiretap statute.
See Jackson,
The officers protest that Glik’s use of a cell phone was insufficient to put them on notice of the recording. They note that a cell phone, unlike the tape recorder used in Hyde, has numerous discrete functions, such as text messaging, internet browsing, video gaming, and photography, and thus the fact of an individual holding out a cell phone in front of his body is of indeterminate significance. The argument suffers from factual as well as legal flaws. The allegations of the complaint indicate that the officers were cognizant of Glik’s sur *88 veillanee, knew that Glik was using his phone to record them in some fashion, and were aware, based on their asking Glik whether he was recording audio, that cell phones may have sound recording capabilities. The fact that a cell phone may have other functions is thus irrelevant to the question of whether Glik’s recording was “secret.”
Appellants’ argument reduces to the contention that, though they were aware of Glik’s recording, they initially thought Glik was taking pictures of. them rather than recording video and audio. This is almost precisely the argument rejected by the four concurring justices in
Rivera,
and it runs directly contrary to the logic of
Hyde’s
“plain view” discussion. Taking the appellants’ argument to its logical end, the
Hyde
defendant’s recording would have escaped a wiretap offense only if he had held his tape recorder in plain view
and
there was affirmative evidence that the officers were aware that the device was switched on and recording audio. To the contrary,
Hyde
makes the point that the use in plain view of a device commonly known to record audio is, on its own, sufficient evidence from which to infer the subjects’ actual knowledge of the recording.
See
We thus conclude, on the facts of the complaint, that Glik’s recording was not “secret” within the meaning of Massachusetts’s wiretap statute, and therefore the officers lacked probable cause to arrest him. Accordingly, the complaint makes out a violation of Glik’s Fourth Amendment rights.
2. Was the Absence of Probable Cause Clearly Established Under the Circumstances?
Appellants contend that, regardless of whether Glik’s conduct in fact violated the wiretap law, the state of the law was such that a reasonable officer would not have understood that arresting Glik for a wiretap offense under the circumstances alleged in the complaint would violate Glik’s Fourth Amendment rights. They point out, rightly, that a lesser showing is required for an officer to be entitled to qualified immunity from a Fourth Amendment claim based on a warrantless arrest than to establish probable cause.
See Cox v. Hainey,
The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was “secret” merely because the officer did not have actual knowledge of whether audio was being recorded. We thus agree with the district court that, at this stage in the litigation, the officers are not entitled to qualified immunity from Glik’s Fourth Amendment claim.
*89 III.
For the reasons set forth above, we affirm the district court’s order denying appellants’ claim of qualified immunity.
So ordered.
Notes
. It is not clear from the complaint whether this was the samé officer who initially addressed Glik.
. Although the City of Boston is formally included in the caption to this appeal, the parties agree that the City has no right to immediate interlocutory appeal from a denial of qualified immunity, as it did not — and could not — assert such a defense.
See Walden v. City of Providence,
. Appellants also argue that Glik failed to state a claim for malicious prosecution under Massachusetts law because, they argue, there was probable cause to charge Glik with a violation of the wiretap statute. As Glik rightly points out, however, appellants have no immediate right of appeal from denial of a motion to dismiss for failure to state a claim, and thus we do not reach their argument.
See Domegan v. Fair,
. Appellants do not attempt any argument that the facts make out probable cause for the other two offenses with which Glik was charged, disturbing the peace and aiding in the escape of a prisoner.
. In
Hyde,
the defendant argued that the wiretap statute did not apply to his taping of police officers, as those "police officers did not possess any privacy interest in the words they spoke” in their interactions with the defendant.
. Glik also points to the statute's language requiring that an offender
"willfully
commit[] an interception,” Mass. Gen. Laws ch. 272, § 99(C)(1) (emphasis added), and argues that there was no probable cause for his arrest because his recording was not "willful.” In this vein, he notes that he was holding his camera in plain view and readily acknowledged that he was recording sound when asked. However, the relevant precedent suggests that the statute’s reference to willfulness requires only a specific intent to record a particular communication, rather than requiring an intent to hide the recording from the subject or some other "willful” state of mind.
See Commonwealth v. Ennis,