Parents fight for the right to record government officials

A Massachusetts family appealed to the Supreme Court on Wednesday, vying for the right to video record government officials.

Parents Scott and Roxanne Pitta have been locked in a yearslong battle with officials at Bridgewater-Raynham Regional School District in Bridgewater, Mass., over educational services for the Pittas’ son, 17-year-old J.J., who has a learning disability. While J.J. is incredibly smart, Scott Pitta said, he needs extra services, such as an individual education plan (IEP), to ensure he excels. Public schools offer IEPs under the Federal Individuals with Disabilities Education Act, enabling students like J.J. to have specific, individualized support to better navigate school.

But in early 2022, district officials told the Pittas in a conversation on the Google Meet platform that their son no longer needed an IEP, Pitta said. According to the Pittas, officials admitted to not having any data to back up their decision.

Scott Pitta and his wife, who teaches special education, strongly disagreed with the school. After the call, the Pittas checked the meeting’s written minutes to ensure it included the officials’ admission, but they discovered the comments were excluded.

When Scott Pitta met with officials the following semester, he asked officials to video record the call to keep an accurate record of the meeting. School officials said that their policies didn’t allow them to record video, but they consented to an audio recording. Pitta said if the officials couldn’t capture a video recording, he would do it himself.

As he started to record, an official warned Pitta to stop or she would terminate the meeting. When Pitta continued, officials ended the meeting.

“I could not believe that this school district would go through such efforts to prevent an accurate record of what they say. It’s thoroughly un-American to me,” Pitta said. “Here I’m sitting in my own house, interacting with my government officials, and they’re trying to tell me I can’t record this.”

The Pittas sued the school, arguing they have a constitutional right to record meetings with public school employees. Though two lower federal courts dismissed their case, the Pittas are now appealing to the U.S. Supreme Court.

The First Amendment protects a person’s right to video-record government officials while they are performing their duties, said Adam Shelton, an attorney at Goldwater Institute, which represents the Pittas.

While this right is consistently upheld in public spaces, Shelton said the Pittas have a right to record the officials in a virtual meeting from home because the parents’ actions were inherently expressive conduct.

The First Amendment protects not just speech, but also conduct that is inherently expressive, Shelton explained. Inherently expressive conduct is an action that conveys a message, he said—the Pittas’ decision to video record the meeting conveyed the message of distrust.

Because of this, Shelton said the Pittas didn’t need to have permission to record the meeting regardless of where it occurred.

But two lower courts said otherwise when they dismissed the case. The 1st U.S. Circuit Court of Appeals held that citizens only have the right to record government officials if those officials are in “indisputably public places,” and the recording serves the public interest.

That ruling doesn’t provide enough protection, Shelton said. Restricting the right to instances of public interest essentially requires people to predict the future—people don’t know when a recording could become important to share with others, the case’s petition said.

Shelton also pointed out that the lower court’s ruling didn’t address why audio recording was allowed and video recording wasn’t.

However, the Massachusetts school was “gratified” with the ruling, said Mary Ellen Sowyrda, a partner at Murphy, Hesse, Toomey, and Lehane, which represents the school district. She said the school chose to do only an audio recording, not a video recording, because of confidentiality concerns.

If the courts had ruled against the school, the outcome “would have upended long-established laws providing confidentiality to students,” Sowyrda said in an emailed statement.

Across the country, circuit courts are divided on the issue of whether or not video recording government officials is protected inherently expressive conduct, Shelton said.

The 3rd, 7th, 9th, and 10th Circuits have held that the First Amendment protects video recording, but the 4th, 5th, 8th, 11th, and the District of Columbia Circuit have ruled that it only protects video recording in some circumstances.

The Supreme Court needs to step in and clearly define this, Shelton said. Its ruling could have a massive effect on the way lower courts address cases like the Pittas.’

Scott Pitta said that courts should uphold this right because it enables citizens to keep officials accountable. Just like body cameras give a record of police actions, citizen video recordings can do the same for school officials, he said, adding that all parents should have the right to record meetings in public, at home, or virtually.

“This is one fight that I can fight so that any parent out there can just record these meetings . . . and to be able to hold that up instead of the situation we have now where the school district gets to write their own facts,” Pitta said. “This puts the parents on an even playing field with the school district as far as what was said.”