340 F. Supp. 3d 87
D.D.C.2018Background
- Plaintiffs (Martin and Project Veritas Action Fund) challenge Mass. Gen. Laws ch. 272, § 99 to the extent it criminalizes secret audio recordings of government officials (Martin: police officers) performing duties in public.
- Martin plaintiffs regularly and openly recorded police and wish to make secret recordings in some circumstances but refrain due to fear of prosecution under Section 99; BPD and SCDAO have investigated/charged persons under § 99 for secret recordings.
- Project Veritas (PVA) conducts undercover journalism using secret audio/video; PVA alleges § 99 chills its investigations and has refrained from planned secret-recording projects in Massachusetts.
- BPD training materials (video, bulletins, manuals) instruct officers that open recording is permitted but secret audio recording is proscribable and sometimes authorize arrests for secret recordings.
- The court consolidated related procedural issues (standing, ripeness, Monell municipal-liability claim, and adverse-inference request) and proceeded to cross-motions for summary judgment on the First Amendment claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 99 may be applied to secret audio recordings of government officials performing duties in public | § 99 unconstitutionally prohibits newsgathering and is thus invalid as applied to secret recordings of public officials | § 99 protects privacy and notice interests; it criminalizes secret interception and is a valid regulation | Court: § 99 cannot constitutionally prohibit secret audio recording of government officials performing duties in public, subject to reasonable time/place/manner limits |
| Level of scrutiny | Intermediate scrutiny (content-neutral restriction on recording) | § 99 is content-neutral; defendants hinted lower scrutiny but did not develop it | Court: intermediate scrutiny applies (content-neutral conduct restriction) |
| Narrow tailoring under intermediate scrutiny | Broad ban on secret audio recording is not narrowly tailored and burdens speech more than necessary; audio recording is uniquely valuable and not replaceable | § 99 serves significant privacy interests (notice of recording) and public safety; can be applied to protect privacy | Court: § 99 fails intermediate scrutiny as applied to secret recording of public officials because it is not closely tailored and burdens information-gathering |
| Municipal liability (Monell) for BPD training materials/guidance | BPD training that instructs arrests for secret audio recordings is a conscious municipal policy that caused chilling and threat of enforcement | Commissioner: training is mere instruction to enforce state law, not a municipal policy causing liability | Court: BPD materials demonstrate a conscious policy to enforce § 99 and satisfy Monell causal requirements |
Key Cases Cited
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (First Amendment protects filming government officials in public; right subject to reasonable time/place/manner limits)
- Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) (reaffirming right to film police in public; restrictions permissible only if filming interferes with duties)
- Alvarez v. City of Chicago, 679 F.3d 583 (7th Cir. 2012) (audio/audiovisual recording is protected by the First Amendment and is uniquely reliable for newsgathering)
- Commonwealth v. Hyde, 434 Mass. 594 (Mass. 2001) (Section 99 prohibits secret electronic recording of oral communications under Massachusetts law)
- Jean v. Massachusetts State Police, 492 F.3d 24 (1st Cir. 2007) (observing § 99 is a content-neutral law of general applicability)
- Monell v. Department of Social Servs. of City of N.Y., 436 U.S. 658 (1978) (municipalities liable under § 1983 when unconstitutional action implements an official policy)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time/place/manner doctrine requires narrow tailoring to significant governmental interest)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (narrow tailoring requires a close fit between means and ends)
- Bartnicki v. Vopper, 532 U.S. 514 (2001) (recognizing privacy of communications as an important interest relevant to regulation of disclosures)