Case study

Accompanying these instructions are three precedent cases: Cirelli v. Town of Johnston School District, Commonwealth v. Hyde, and Fordyce v. The city of Seattle. All three bear (in varying ways and to various degrees) on the hypothetical case outlined below. You should review these cases, and using them (including any dissenting opinions that you feel support your position on the hypothetical case), draft opinion as to how the hypothetical case should be decided consistent with the precedents. (The dissent in Hyde begins just after the end of the majority opinion, which concludes with the words “Judgments affirmed.”) Note that the precedent cases may conflict in various ways; it is up to you to decide how they should be used in a way that logically resolves the hypothetical case as consistently as possible with the precedents to the extent they are relevant and well-reasoned, which may mean following one or more of them, or diverging from one or more of them. Ultimately, this as an opportunity for you to demonstrate your understanding of how legal reasoning works in the context of disputed legal cases. The precedent cases address multiple legal issues; you should focus your use of them in resolving the hypothetical case only on those legal issues that are directly relevant to the hypothetical case.
There is no strict page limit or length requirement for this assignment, but 2-4 pages of single- spaced text (or the double-spaced equivalent) should be more than adequate in most cases to adequately address the issuesMilk v. Conkling
Simone Milk, a private citizen of Massachusetts, was walking in downtown Boston one evening when she saw several officers approach, confront, and ultimately arrest another person, Patrick Fong. During the arrest, Milk heard another bystander assert that the officers were hurting Fong. Concerned for Fong’s safety, Milk took out her cell phone and began recording video of the incident. When one of the arresting officers, Officer Conkling, saw this, he approached Milk and asked if the cell phone recording included the audio capability. Milk affirmed that it did, whereupon Officer Conkling arrested her and seized her phone for, among other things, violating Massachusetts General Law chapter 272, § 99 (C)(1), which prohibits as “wiretapping” the recording of an audio conversation without the permission of all parties to the conversation. All charges against Milk were ultimately dismissed by the Boston Municipal Court. The alleged violation of the wiretap law centrally at issue in the case was deemed not a crime by the dismissing trial judge because Milk was exercising her First Amendment rights by recording audio and video of an arrest in progress in public view. The judge did not further explain this conclusion.
Subsequent to the dismissal of the charges against her, Milk filed a lawsuit against Officer Conkling in federal court, alleging that he violated her federal constitutional rights in violation of a federal statute, 42 U.S.C. § 1983. The text of Section 1983 provides a cause of action, including for damages, against “every person” acting “under color” of state law who “subjects” a person to “the deprivation of any right” secured by the Constitution, including any First Amendment free speech rights, rights to petition the government, or other related rights. Officer Conkling moved to dismiss Ms. Milk’s lawsuit on the ground that it had not been established as a matter of relevant precedent that persons in Massachusetts and subject to its wiretapping law had a constitutional right to violate the state law when and if the recording in question involved officers engage in their public duties, citing Hyde. Ms. Milk, citing Cirelli and Fordyce among other cases, argued that it is well established as a matter of state and federal law that there is a First Amendment exception to Massachusetts’ wiretapping statute that kicks in when a person is recording matters of public interest, including arrests by law enforcement officers, provided that the officers are aware that they are in public and do not immediately object to the recording, and that moreover all recordings of public officials engaged in their public duties are matters of public interest, the recording of which is absolutely protected by the First Amendment.
Write an opinion using the case precedents provided that resolves the matter: was Milk’s action in filming the officers constitutionally protected even given the parameters of the Massachusetts statute? If so, then her Section 1983 claim can proceed. If not, it should be dismissed. Defend your views using the precedent cases and their holdings.

Sample Solution