Massachusetts can’t prosecute posting of illegal web video

The recent case of Jean v. Massachusetts State Police addressed the question of whether the First Amendment prevents law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded.

Mary T. Jean operated a website critical of her community’s former district attorney. One of the visitors to her site contacted her, and sent a videotape of eight Massachusetts state police officers conducting a warrantless search of the visitor’s home. The video was made by a “nanny cam” in the home.

After Jean was threatened with criminal prosecution under the state’s wiretap law, she sought a temporary restraining order against the police and the attorney general, to prevent her from being arrested. The lower court granted the motion, relying on the Supreme Court case of Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).

It held that Jean had demonstrated a likelihood of success on the merits of her First Amendment claim, that irreparable harm would result from the absence of an injunction, and that the balance of burdens and public interests weighed in her favor. The court noted that although the tape may have been recorded in violation of the state law, Jean played no part in the recording of the video, she had “obtained the tape lawfully,” and the videotape related to a “matter of public concern.”

On appeal, the U.S. Court of Appeals for the First Circuit affirmed the entry of the temporary restraining order. It found the case “materially indistinguishable” from Bartnicki, concluding that publication of the video was entitled to First Amendment protection.

Jean v. Massachusetts State Police, — F.3d —-, 2007 WL 1793126 (1st Cir. June 22,2007)