Martin and Perez v. Police Commissioner and Suffolk County District Attorney, No. 16-11362-PBS (D. Mass.) March 13, 2017.
Project Veritas Action Fund v. Suffolk County District Attorney, No. 16-10462-PBS (D. Mass.) March 23, 2017 and September 6, 2017.
Two unfolding Massachusetts cases test the limits of the state’s wiretap law, Mass. Gen. Laws ch. 272, § 99. That law criminalizes interception or recording conversations without consent. Project Veritas, an “underground” media organization, contemplates recording investigations of “scofflaw” landlords and Boston officials involved in immigration and sanctuary city policies. Two individual social justice activists seek to conduct more of the police recording they have already undertaken.
Pre-Enforcement Review. Neither Project Veritas nor the individual social justice activists have been arrested or charged with violation of the wiretap law, but each seeks pre-enforcement review, asserting that the fear of prosecution inhibits or “chills” their exercise of protected First Amendment activity. The state does not deny the possibility of prosecution, nor do police deny that training materials instruct officers they may arrest individuals discovered to be engaged in covert recording.
Although federal courts generally cannot hear cases unless the party bringing presents a real redressable injury, a potential deprivation of First Amendment rights is considered to be so severe that prosecution is not necessary before review can be obtained. The First Circuit has opinion that new or non-moribund legislation involving constitutional interests may be presumed to carry a credible threat of prosecution absent clear evidence to the contrary.
The district court found that the state’s admission that prosecution is possible precludes a determination that plaintiffs’ fears are attenuated or hypothetical. The court dismissed the assertion that even if the court heard these cases, other enforcement entities might prosecute: a court need not be able to cure all ills for redressability to be present.
Public Officers and Private Expectations. The court has refused to engraft a “reasonable expectation of privacy” limitation on the statute to permit Project Veritas to record public transactions without consent. The central concern of the statute is to protect the privacy of citizens, which the legislature could have limited as Project Veritas has suggested, but did not.
The court observed that conversation does not lose its private character simply because discussion is had in public, but the court has found the statute constitutionally deficient as to any prohibition on recording police in public performance of their official duties, for the state has no interest in protecting the privacy of police officers conducting public business in public settings. This determination gives the individual social justice activists’ claim continued vitality.
Standing and Ripeness. Although each plaintiff has alleged an injury that may be redressed in court, Project Veritas has offered only non-specific contemplated activities. The court cannot offer an advisory opinion on hypothetical contingent matters.
Current Status of Cases. Project Veritas has submitted an amended complaint including additional matters it plans to investigate. Defendants have responded to the social justice activists’ complaints. Both cases await further review.