GERICKE v. BEGIN, Case No. 11-cv-231-SM, No. 2012 DNH 184 (D. New Hampshire, October 15, 2012)

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What happened: Plaintiff recorded a traffic stop of her friend, but was disruptive while she made her recording. She was charged with wiretapping for making the recording, although that charge was later dropped. She sued on the basis that she should not have been charged with wiretapping because she had a Constitutional right to record. Court decided that she had a Constitutional right to record, but not a Constitutional right to record in a disruptive way.

Comments: The result is superficially satisfying in that a person really needs to avoid being disruptive at the scene of a traffic stop, whether that person is recording or not. In this case, separate charges were brought based on the disruptiveness of the plaintiff and that would seem to be sufficient to discourage disruptiveness. It does not seem, to me at least, that the disruptiveness has anything to do with the “wiretapping.” The disruptiveness and the “wiretapping” are mutually independent, conceptually separable and distinct. Furthermore, it is unclear why the wiretapping statute at issue here has not already been declared unConstitutional in toto. However, if courts are going to “read into” the wiretapping statute special, extra-statutory rules like a disruptiveness requirement in order to uphold its Constitutionality (vis-a-vis the First Amendment), then the statute would seem to be unConstitionally void for vagueness.