The First Amendment issue here is, as the parties frame it, fairly narrow: is there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative. It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information. ... The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs.

The police officers arrested Gilk and charged him with violating of the wiretap statute, disturbing the peace, and aiding in the escape of a prisoner. The Commonwealth dropped the last charge recognizing that they did not have probable cause. The other two charges against Gilk were also dismissed by a Boston Municipal Court. In February 2010, Gilk filed a complaint under 42 USC § 1983 [text] for violation of Gilk's First Amendment and Fourth Amendment rights. The officers appealed to the First Circuit court after the district court denied the officers motion to dismiss the case because the officers had qualified immunity.