244 F. Supp. 3d 256
D. Mass.2017Background
- Project Veritas Action Fund (PVA), an undercover newsgathering organization, sued under 42 U.S.C. § 1983 and the Declaratory Judgment Act seeking to invalidate Massachusetts General Laws ch. 272 § 99 (Section 99), which bans secret recording of oral communications.
- PVA alleges it refrains from using its secret audio-recording techniques in Massachusetts for fear of criminal and civil liability and seeks pre-enforcement relief to allow investigations (e.g., landlords, government officials).
- Section 99 criminalizes ‘‘secretly hear[ing]’’ or ‘‘secretly record[ing]’’ oral communications by anyone lacking prior authorization from all parties; the statute’s preamble emphasizes protection of conversational privacy.
- The Commonwealth’s Supreme Judicial Court has construed the statute broadly to cover ‘‘secret’’ recordings even absent a reasonable expectation of privacy; open recordings in plain sight are treated differently.
- The District Court treated factual allegations as true for the motion to dismiss and considered standing for pre-enforcement review, intermediate scrutiny under the First Amendment for content-neutral laws, and potential overbreadth for a facial challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (pre-enforcement) to challenge ban on secret recording of private individuals | PVA alleges credible intent to secretly record landlords in Boston; verified complaint shows chill from statute | Conley contends PVA lacks specific plans to record in Suffolk County and so lacks standing | PVA has standing to challenge ban as applied to secret recording of private individuals (claims re: government officials dismissed without prejudice) |
| As-applied First Amendment challenge (private individuals) | Secret audio-recording of private persons in public is protected newsgathering speech; statute not narrowly tailored | Section 99 protects significant governmental interest in conversational privacy and is narrowly tailored by banning only secret recordings while allowing open recording | Section 99, as applied to secret recording of private individuals, does not violate the First Amendment (intermediate scrutiny satisfied) |
| As-applied First Amendment challenge (government officials in public) | Recording public officials is protected; statute impermissibly restricts this activity | Government argues no First Amendment right to secret recordings | Court found PVA’s allegations about recording government officials too vague; prior case (Martin) held recording public officials violated First Amendment; here claim dismissed without prejudice to amend |
| Facial overbreadth challenge | Statute reaches protected First Amendment activity broadly and chills speech | Most applications are constitutional; overbreadth requires substantial unconstitutional applications | Statute not substantially overbroad on its face; survives facial challenge |
Key Cases Cited
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir.) (recognizes First Amendment right to record government officials in public)
- Bartnicki v. Vopper, 532 U.S. 514 (privacy of communications is a substantial government interest)
- American Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir.) (discusses conversational privacy and eavesdropping statutes)
- Martin v. Evans, 241 F. Supp. 3d 276 (D. Mass.) (analyzed Section 99 and found it unconstitutional as applied to secret recording of police in public)
- Commonwealth v. Hyde, 434 Mass. 594 (Mass.) (SJC reaffirmed vitality of wiretap statute)
- United States v. Salerno, 481 U.S. 739 (facial challenge standard)
- New York v. Ferber, 458 U.S. 747 (overbreadth doctrine and limits on facial invalidation)
- United States v. Williams, 553 U.S. 285 (limits on overbreadth; doctrine is "strong medicine")