“It just seems like a capsulation of how afraid the culture is if you can’t go to the Boston Common” and take photographs, he says. “Boston Common is like Hyde Park in London, it’s a free-speech zone. If this had happened on the other side of Tremont Street, I wonder if a Boston cop [would’ve] ever said such a thing to someone with a camera.”
Of course, the camera may have been the catalyst, but it was the microphone that got Manzelli slapped with a felony conviction. And the case law for such actions — if not the facts of Manzelli’s case — is pretty clear.
In the 2001 case of Commonwealth v. Hyde, which upheld the conviction of a motorist who surreptitiously recorded officers who pulled him over, the Supreme Judicial Court ruled that state law that “strictly prohibits the secret electronic recording by a private individual of any oral communication” covers interactions with public officials who are in the course of exercising their public duties.
In her dissent, however, Chief Justice Margaret H. Marshall warned of the law’s potential danger to reporters; more specifically, “the ability of the press — print and electronic — to perform its constitutional role of watchdog.” And not just the credentialed press corps. If the Rodney King beating had been in Massachusetts, Marshall asserted, the guy who videotaped it, out of sight of the police, could have been indicted.
More recently, there’s the case of Mary T. Jean, a Leominster woman who fell afoul of the wiretap statute when she uploaded a video to her Web site, recorded by a “baby cam,” that allegedly shows a man being arrested in his home without a warrant. The particulars of the case are complex (for details, see Dan Kennedy’s ninth annual “Muzzle Awards”), but Jean’s lawyer has argued that “publication of the video served the public interest.” And US District Court judge Dennis Saylor seems inclined to agree: he’s issued several preliminary injunctions, saying the case “goes to the core of what the First Amendment is intended to protect.”
We report, you decide
David Russman, Manzelli’s appeals attorney, meanwhile, suspects the jury’s deep skepticism about who Manzelli was and what he represented worked against his client.
“The court was somewhat incredulous as to his credentials as a member of the press,” says Russman. “One of the things we said was he was just out there doing his job. Sure, he’s not Ted Koppel, but this is how he makes his living, and he’s out there reporting. They were somewhat dismissive of that argument. Clearly he had all of the trappings of the trade. He’s got the camera lights, he’s got the recording device and the cameras around his neck.”
But should it matter what apparel he has? Or whether he was a reporter for WBZ or for WZBC? Shouldn’t journalists — in the broadest sense, whether they’re credentialed members of major media outlets or suppliers of free content to low-budget lefty papers — enjoy the same rights? Would officer Harer have given guff to a reporter from a local TV news station who tried to take his picture or record an interview?
