The First Amendment protects the right of every person to speak freely without government censorship or sanction. Verbal criticism directed at police officers, even when it involves profanity, is protected speech. Therefore, a person cannot legally be arrested for such speech. Public employees like police officers have rights under the First Amendment, although the Supreme Court has limited their rights when they are performing the duties of their job. Here are some sample cases we have handled:
The right to record police officers
Civilians have a right to record on-duty police officers in public spaces. We are experienced in bringing lawsuits against police officers who violate this right. Most notably, we partnered with the American Civil Liberties Union of Massachusetts to bring a lawsuit for Simon Glik that resulted in a landmark decision from the First Circuit Court of Appeals. On October 1, 2007, Mr. Glik used his cell phone to record police officers forcefully arresting a man on the Boston Common. The officers then arrested Mr. Glik and charged him with illegal wiretapping, aiding the escape of a prisoner, and disturbing the peace. The charges were eventually dismissed.
Mr. Glik then sued the police officers, who argued that the case should be dismissed because the law is unclear about whether or not people have a right to record the police. On August 26, 2011, the Court issued a unanimous opinion rejecting the officers’ interpretation of the Massachusetts wiretapping law and the First Amendment. The Court determined that the officers should have known that there was a clearly established right to record public officials. The First Circuit's ruling is binding only in Massachusetts, New Hampshire, Maine, Rhode Island, and Puerto Rico, but its persuasive reasoning has been cited by courts and lawyers nationwide facing the recurrent issue of police arresting people for filming them.
We have also handled cases where police officers have used excessive force because they were angry that their actions were being recorded. Two examples of this are Paulino v. Richard and O’Brien v. Williams.
Unconstitutional censorship at a school committee meeting
We represented Luke Gelinas, who was unlawfully ejected from a South Hadley School Committee meeting on April 14, 2010, following his criticism of school officials for their handling of the events surrounding Phoebe Prince’s suicide. The meeting was open to the public, and a segment was dedicated to public comment on any school-related matter. Before Chairperson Edward Boisselle opened the public comment portion, he announced that he would not allow any “conversation about the Prince family, Phoebe Prince, or any of her activities or allegations related to that case.” Mr. Gelinas, a parent of two children in South Hadley schools, attempted to read from a prepared statement. He spoke calmly and respectfully, and he divulged no private information about Prince or her family. Mr. Gelinas called for the dismissal of the Superintendent and Principal and the censure or removal of Chairperson Boisselle. Boisselle interrupted Mr. Gelinas several times and ultimately silenced him. Boisselle informed Mr. Gelinas that his First Amendment rights were “outside on the street.” Police officers escorted Mr. Gelinas from the room.
Mr. Gelinas settled this case for $75,000 after the Court denied Boisselle’s motion for summary judgment and found that a reasonable jury could find that Mr. Gelinas’s rights were violated. The First Amendment protects individuals’ right to speak at public meetings on matters of public concern, regardless of the viewpoints they express.
Department of Correction censors materials from Prison Legal News
We represented Prison Legal News (PLN), an independent non-profit publisher and bookseller. PLN publishes a monthly magazine, Prison Legal News, which has prisoner subscribers in all 50 states. At the time of this lawsuit in 2008, PLN distributed books to prisoners in the federal prison system and in 49 state prison systems; Massachusetts alone refused to permit PLN to distribute books to its prisoners. We brought a lawsuit to end the unlawful censorship by the Massachusetts Department of Correction. The case settled, and Massachusetts prisoners are now free to order PLN materials.
Retaliation against a police officer by his department
A police officer was told he needed to take a psychiatric examination after he truthfully reported facts that supported a civilian's claim that she was a victim of excessive force by another officer. We negotiated an agreement with the department, allowing him to return to work without retaliation.
Arrest for cursing at a police officer
A speeding cruiser driven by a Worcester police officer who was responding to a non-emergency call almost hit the plaintiff as she crossed a street on foot. When the plaintiff cursed at the officer for almost hitting her, he turned around to confront her. When the plaintiff asked for his name so that she could file an internal affairs complaint against him, the officer arrested her for alleged disorderly conduct. We settled this case.
Nader v. Commission on Presidential Debates
We represented Ralph Nader in a suit against the Commission on Presidential Debates (CPD), a private corporation that Ralph Nader criticized, saying that it promotes the two dominant parties by excluding third-party candidates. On October 3, 2000, the CPD held the first of three presidential debates at the University of Massachusetts, Boston campus. Mr. Nader, the Green Party presidential candidate, was excluded from participating in the debate but had a ticket to view a televised on-campus screening, and he planned to speak with journalists on the campus. During two attempts to enter the campus, however, a representative of the CPD refused him access. A state police trooper threatened him with arrest. After the CPD lost its motion to dismiss and later its motion for summary judgment, on the eve of trial, the CPD agreed to settle the case for terms similar to Mr. Nader's initial demand.