First Amendment Protects Posting of Arrest Recording
The case of Jean v. Massachusetts State Police, No. 06-1775 (1st Cir.) is one of those cases that leaves you wanting to know more about what was really going on between the people involved.
In that case, Mary Jean, described as a local political activist in Worcester, Massachusetts, had a website containing information critical of the former county district attorney. In 2005, she was contacted by Paul Pechonis, whom she had never met, who told her that eight armed state police troopers had arrested him in his home on a misdemeanor charge. The arrest had been audio and videotaped by a motion-activated "nanny-cam" and he provided a copy of that recording to Jean who then posted the recording on her website along with an editorial critical of the former county district attorney's performance in office.
The State Police ultimately discovered the recording on the website. They wrote a letter to Jean telling her that her actions violated state law and were subject to prosecution as a felony, and that if she did not "cease and desist" within 48 hours from posting the recording, the police would refer the matter to the district attorney for investigation and possible prosecution. The State Police later clarified their position by a second letter to Jean, stating that she would not be in violation of the law if she removed the audio portion of the recording from the website.
Jean apparently did not remove the recording from her website and instead filed a complaint in federal district court seeking a temporary restraining order and injunctive relief precluding the government officials from threatening her with prosecution or enforcing the relevant state law against her based on her right to free speech under the First Amendment. The District Court granted Jean both a TRO and a preliminary injunction finding that, based on the Supreme Court case of Bartnicki v. Vopper, 532 U.S. 514 (2001), Jean had demonstrated a likelihood of success on her First Amendment claim because she had played no part in the allegedly unlawful recording of the video, she had obtained the recording lawfully, and the video related to a matter of public concern. The First Circuit agreed with the District Court, ultimately finding that, because Jean's publication of the recording on the website was entitled to the same First Amendment protection as that involved in Bartnicki, she had demonstrated a likelihood of success on the merits and therefore affirmed the grant of a preliminary injunction.
