380 F. Supp. 3d 169
D.D.C.2019Background
- Plaintiffs challenged Mass. Gen. Laws ch. 272, § 99, which criminalizes secret audio recordings, arguing it violates the First Amendment when applied to recordings of government officials in public.
- On December 10, 2018, the court granted plaintiffs summary judgment, declaring Section 99 unconstitutional insofar as it prohibits secret audio recording of government officials performing duties in public, subject to reasonable time, place, and manner restrictions.
- Defendants (Suffolk County District Attorney and Boston Police Commissioner) sought reconsideration: they asked the court to issue only a declaratory judgment (not an injunction) and to narrow the ruling by defining "public space" and "government official," and by preserving enforcement when a recording captures civilians’ communications.
- The court evaluated whether a declaratory judgment or an injunction was the appropriate remedy and whether to narrow its prior holding.
- The court concluded a declaratory judgment is sufficient and declined to narrow the prior ruling or limit its application when recordings also capture civilians.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Remedy: declaratory judgment vs. permanent injunction | Martin: injunction necessary to ensure compliance | Defs: declaratory judgment is less coercive, respects federalism and comity | Court: declaratory judgment is sufficient; no injunction issued |
| Remedy enforcement risk | Martin: defendants previously enforced §99 after Glik, so injunction needed | Defs: will obey this Court’s ruling; declaratory relief adequate | Court: accepts defendants’ assurances; declaratory relief balances interests |
| Scope: define "public space" and "government official" | Martin: previous broad holding stands; definitions should await further cases | Defs: want narrower definitions (e.g., traditional/designated public fora; list of officials) | Court: declines to redefine terms now; retains prior Glik-based language |
| Mixed recordings (official + civilian) | Martin: First Amendment protection applies even if civilians are recorded | Defs: §99 should remain enforceable to protect civilian privacy | Court: denies narrowing; recording that captures civilians does not save §99 from constitutional constraint; reasonable time/place/manner limits remain |
Key Cases Cited
- Steffel v. Thompson, 415 U.S. 452 (milder nature of declaratory relief vs. injunction)
- Doran v. Salem Inn, Inc., 422 U.S. 922 (declaratory judgments can suffice after successful constitutional challenge)
- Samuels v. Mackell, 401 U.S. 66 (practical equivalence of declaratory and injunctive relief)
- Glik v. Cunniffe, 655 F.3d 78 (First Circuit recognition of right to record government officials in public)
- Cutting v. City of Portland, 802 F.3d 79 (First Circuit approving injunctive relief in some facial challenges)
- Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (favoring declaratory relief where injunction would require judicial micromanagement)