982 F.3d 813
1st Cir.2020Background
- Massachusetts Gen. Laws ch. 272, § 99 criminalizes "secretly" intercepting or recording any wire or oral communication and contains no exception for recordings made where the speaker lacks a privacy expectation. The SJC construes "secretly" as recording without the subject's actual knowledge.
- Commonwealth v. Jackson and Commonwealth v. Hyde: Massachusetts courts held Section 99 covers recordings of persons who lack a reasonable expectation of privacy and requires actual knowledge to defeat the "secretly" element.
- Two 2016 federal suits in D. Mass.: Martin & Pérez sued to enjoin enforcement of Section 99 as applied to secret, nonconsensual audio recordings of police officers performing duties in public; Project Veritas sued more broadly, challenging Section 99 as-applied and facially (overbreadth) for banning secret recording of government officials and of persons without a privacy expectation.
- District Court: granted summary judgment to Martin (holding the statute unconstitutional as applied to secret audio recordings of government officials, including police, in public spaces under intermediate scrutiny) and rejected Project Veritas’s facial overbreadth challenge; it resolved other Project Veritas claims variably on ripeness and merits.
- First Circuit: affirmed summary judgment for Martin; affirmed dismissal of Project Veritas’s overbreadth claim; vacated and remanded (for dismissal without prejudice as unripe) Project Veritas’s broader pre-enforcement challenges to the statute insofar as they sought relief beyond the specific, concrete investigations alleged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 99 violates the First Amendment as applied to secret, nonconsensual audio recording of police performing duties in public | Martin: § 99 chills newsgathering about public officials; secret recordings of police in public are protected speech/newsgathering | Commonwealth: statute is content neutral criminal regulation designed to protect privacy and prevent interference with police; applies to all secret recordings | Held: protected as newsgathering; intermediate scrutiny applies; § 99 is not narrowly tailored to those interests and therefore unconstitutional as applied to secret recordings of police in public (affirmed) |
| Whether § 99 is facially overbroad under the First Amendment | Project Veritas: § 99 reaches a substantial amount of protected speech and therefore is void in its entirety | Commonwealth: most applications are constitutional; statute protects privacy in many contexts | Held: Overbreadth claim rejected; Project Veritas failed to show a substantial number of unconstitutional applications (affirmed) |
| Whether § 99 is unconstitutional insofar as it criminalizes secret recording of private persons who lack a reasonable expectation of privacy | Project Veritas: blanket ban on secret recordings of persons without a privacy expectation is unconstitutional | Commonwealth: § 99 legitimately protects notice/privacy and is a content-neutral privacy regulation | Held: Claim dismissed as unripe for lack of a sufficiently concrete, narrowly tailored plan to engage in the full breadth of challenged conduct (vacated and remanded to dismiss without prejudice) |
| Whether § 99 is unconstitutional insofar as it forbids secret recording of any government official performing duties in public | Project Veritas: needs pre-enforcement relief to pursue planned investigations of officials in public | Commonwealth: statute serves privacy and anti-interference interests; ripeness disputed | Held: Project Veritas’s broad, imprecise challenge is unripe; appellate court vacated merits ruling and remanded to dismiss without prejudice for lack of Article III jurisdiction |
Key Cases Cited
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (First Amendment protects recording of government officials, including police, performing duties in a public space)
- Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) (extends Glik; recording during traffic stop warranted protection; interference must be concrete to justify restriction)
- Commonwealth v. Jackson, 349 N.E.2d 337 (Mass. 1976) (interpreting § 99 to cover recordings of persons who lack a reasonable expectation of privacy; “secretly” means without actual knowledge)
- Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001) (reaffirming § 99’s coverage of recordings of public officials and explaining actual knowledge/plain sight affects secrecy element)
- American Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (pre-enforcement challenge to eavesdropping law; acknowledges First Amendment burden from prohibiting recording of police in public)
- Bartnicki v. Vopper, 532 U.S. 514 (2001) (privacy interests can justify restrictions in some contexts but do not automatically override speech protections)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (ripeness and pre-enforcement standing principles for First Amendment challenges)
- Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979) (ripeness concerns where resolution depends on attributes of situs; pre-enforcement relief limited when factual development is required)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth doctrine standard: invalidate statute only if substantial number of its applications are unconstitutional)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content-neutral time, place, manner restrictions; tailoring and alternative channels requirements)