By Carlos Miller
What is it with these states and their unconstitutional laws?
A few months ago, we learned of a Tennessee law titled “unlawful photography”, which lead to the arrest of Scott Conover, who photographed an on-duty cop on a public street. I’ve been talking to Scott and I have the most interesting update on that one, so stay tuned. I’m just waiting for a couple of documents.
Then last Saturday in Massachusetts, police arrested a man who videotaped them against their wishes, charging him with “violating the law regarding videotaping without consent of both parties”.
Mark Hynes, 24, of 44 Chappie St., Charlestown, was arrested after he allegedly took pictures of police officers without their permission on Sept. 27. Reports stated that at 3:30 a.m., the suspect was waiting for a friend to finish filing an incident report, and officers asked him to sit down because he kept interrupting the process. The suspect reportedly refused, saying he had the right to stand wherever he wanted. The suspect then allegedly began taking pictures of the officers and said, “It is live streaming to my home computer” to officers when told that they did not want their pictures taken. The suspect was charged with disorderly conduct and violating the law regarding videotaping without consent of both parties.
Now I’m assuming he was videotaping them and not “taking pictures” as the article suggests because then police would really be stretching it by charging him with “videotaping without consent” if he only had been taking pictures. Perhaps there is no “unlawful photography” law in Massachusetts.
And is there even a “videotaping without consent” law? I’m assuming it is a state or local law because police just wouldn’t make it up, would they?
But even if it was, there is no way this is going to stand in court because as one who keeps up with these things, I know of a similar incident in Boston (where Charlestown is a suburb) which resulted in a judge dropping all charges against the suspect.
From a Feb. 6th, 2008 Photography is Not a Crime article:
Simon Glik of Boston was arrested in October on felony charges of illegal wiretapping, disturbing the peace and – aiding a prisoner escape – after he used his cell phone to videotape police arresting a drug suspect. Glik, who was born in Moscow, must have felt as if he were back in Russia.
So both men were videotaping police against their wishes. I suspect the “videotaping without consent” charge is the same “illegal wiretapping” charge they tried to nail Glik with last year.
Thankfully, Boston Judge Mark H. Summerville threw that case out on the grounds that videography is not wiretapping, it’s photography. And as the judge noted, “Photography is a form of expression which is entitled to First Amendment protection just as the written or spoken word is protected.”
So I not only hope Hynes gets his charges dropped, I hope he sues the hell out of them for violating his First Amendment rights because how else is all this madness going to stop?
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Fernandez, as I mentioned in a 
16 responses so far ↓
1 genewitch // Oct 3, 2008 at 10:50 PM
Carlos, I’d like to start mailing letters out, is there any way to get the info for these sheriff’s/chiefs of police, etc so i can write them. but i’m too lazy to search for it by hand
2 Scott // Oct 3, 2008 at 10:53 PM
You know I do know that all of these police don’t seem to remember the constitution, but it is comforting that at least SOME judges remember how this country was founded.
Certainly not counting yours Carlos.
3 genewitch // Oct 3, 2008 at 10:54 PM
oh and also, yeah, laws need to be challenged in court before people can stop charging folks with violating them. for instance, florida could make a law that said “no pictures allowed anywhere of anything” and it would stand and stay on the books until someone that was arrested for violating it took it to the florida supreme court (or the US supreme court). that’s how lawmaking works in this country. if the citizens don’t yell at their state congress when they’re passing laws, they’ll do whatever they want.
How to fix? Vote the idiot state congressmen out of office, get arrested for the unconstitutional law, have it overturned and taken out of the law books for being unconstitutional.
Because funny enough, NO STATE IS ALLOWED TO MAKE A LAW THAT VIOLATES OUR CONSTITUTIONAL RIGHTS AS AMERICANS. isn’t that nice?
4 Dax Garvin // Oct 6, 2008 at 9:07 AM
I am looking into this too as I run my own blog and subscribe to this one… as a criminal defense attorney it astounds me daily how many times cops are so far out of bounds and nothing happens. Even if his case is dropped or he wins at trial, this poor guy will still have had the stress of the incident not to mention the expense of fighting it.
5 Scott // Oct 6, 2008 at 10:11 AM
I think Carlos here can defiantly attest to the expense, can’t you Carlos.
6 Carlos Miller // Oct 6, 2008 at 5:10 PM
Dax,
That’s the most frustrating part. It’s like the cops know they are going to get away with making unlawful arrests.
Even if it doesn’t stand up in court, the cops still end up winning because they end up locking you up and making you waste your money to defend you innocence.
7 Carlos Miller // Oct 6, 2008 at 5:11 PM
Scott,
It’s really been a jading experience.
8 Keith Skinner // Oct 15, 2008 at 12:35 AM
Robinson V Fetterman is still the most valid case law for this type of abuse of power.
I’m involved in civil action now against a Sheriff and three Deputies concerning similar conditions.
The first poster is correct, they can pass and enforce anything they wish, whether it has the ability to stand up to State or Federal Court scrutiny is another story entirely.
I have vowed not to take any out of court settlements in my case for the simple fact I want it to be heard by a Federal Judge in a Federal Court and made a part of the public record! To take a settlement would be allowing them to continue this conduct unfettered! That is the way these laws remain enforceable at local levels in many cases.
9 Mr. Mullen // Oct 20, 2008 at 4:28 PM
These laws were passed in most cases to keep pervert’s from secretly video taping women in their apartment’s.Public bathroom’s and to prosecute dirtbag’s who try to get those “upskirt” videos of women on the street or on escalators, it was never meant for the reason these police officers are enforcing it.
10 Cody // Dec 8, 2008 at 6:03 PM
Honestly, when the police told you to not take photographs of them, why didn’t you? I understand the face that you think you have the “legal right” to do so, but you were asking to be arrested for such a dumb reason. If somebody was taking pictures of you and you asked them to stop and they refused, wouldn’t you be frustrated? And if you wouldn’t care, I speak for many who do care…who want privacy. Come on.
11 Caroline // Feb 2, 2009 at 2:23 PM
I have a question. If a public speaker comes to a public school can he be videotaped without his permission? I include cell phone pictures in this question.
If there was an agreement with the school that only the speaker could videotape due to intellectual property laws, would this be binding, particularly if it was in writing?
12 John // Feb 2, 2009 at 3:19 PM
Not a lawyer but it seems that
1) your agreement not to be videotaped is with the school and not the kids
2)the kids would need to sign this agreement
and finally…
3) I don’t believe kids (under 18) can even make a legal contract because they are minors. You can make a contract with them but you are the only one held to its terms – they can breach at any time without repercussions.
But lets see…where my lawyers at?
13 Carlos Miller // Feb 2, 2009 at 3:58 PM
That’s a good question, Caroline.
I would say, yes, of course he can be videotaped but we all know students are not entitled to the same First Amendment rights as adults are.
And I really don’t understand how they could use “intellectual property laws” to justify forbidding anyone else from filming the speaker.
Especially if an event is considered “news” as I imagine this would be.
A commercial shoot might be different.
Intellectual property laws usually means a person owns their own content but I’ve never heard it meaning they can forbid other people from filming the same footage.
I’ve heard wedding photographers who make their clients sign an agreement that no other photographer will be photographing the wedding, but this usually means other professional photographers.
How can they stop Aunt May for taking snapshots with her point and shoot?
So I would be interested in hearing what the attorneys have to say on this one.
14 Vicki // Feb 3, 2009 at 7:32 AM
I am being threatened by my ex-husband, because he wants to sue me and press charges stating I violated Florida’s anti wiretapping law. Florida is a two party state. The issue arose when he accused me of forging court documents. I had to provide a response to the courts, in my response, I advised the judge I had a recording of a phone conversation him and I had. Now, it only is 2 sentences and doesn’t incriminate him, but helps my case in proving I’m innoncent. I’m not sure what to expect legally. I’m a law abiding citizen and do not think he should be able to sue me, when I felt I needed to for my own good, and it turns out I was right, I did need it recorded.
15 Someone // Feb 3, 2009 at 7:34 AM
additionally, I did get his consent, but it didn’t record the consent… so now what?
16 Carlos Miller // Feb 5, 2009 at 11:28 PM
Vicki,
Do you have a lawyer?
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