First Circuit Creates Exception To Massachusetts Wiretap Statute Based On First Amendment Rights, Allows Citizens And Press To Record Police Activity…

30 December 2020

Foley Hoag LLP

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The First Circuit's recent opinion in Project Veritas Action Fund v. Rollins, upheld a challengeto the Massachusetts anti-wiretap law, Mass. Gen. Laws ch. 272, 99, carving out an exceptionfor certain activity protected by the FirstAmendment. The opinion begins:

Massachusetts, like other states concerned about the threat toprivacy that commercially available electronic eavesdroppingdevices pose, makes it a crime to record another person'swords secretly and without consent. But, unlike other concernedstates, Massachusetts does not recognize any exceptions based onwhether that person has an expectation of privacy in what isrecorded. See Mass. Gen. Laws ch. 272, 99 (Section99). As a result, Massachusetts makes it as much a crime fora civic-minded observer to use a smartphone to record from a safedistance what is said during a police officer's mistreatmentof a civilian in a city park as it is for a revengeseeker to hide atape recorder under the table at a private home to capture aconversation with an ex-spouse. The categorical and sweeping natureof Section 99 gives rise to the important questions under the FirstAmendment to the United States Constitution that the challengesthat underlie the consolidated appeals before us present.

Section 99 violates the First Amendment by prohibiting thesecret, nonconsensual audio recording of police officersdischarging their official duties in public spaces. We also affirmthe District Court's order dismissing Project Veritas'sFirst Amendment overbreadth challenge for failing to state a claimon which relief may be granted.

The 72-page opinion has a lengthy description of the origins ofSection 99 and is worth reading for that alone. On the merits, theFirst Circuit equated unauthorized recording to more traditionalforms of newsgathering:

a citizen's audio recording of on-duty policeofficers' treatment of civilians in public spaces whilecarrying out their official duties, even when conducted without anofficer's knowledge, can constitute newsgathering every bitas much as a credentialed reporter's after-the-fact effortsto ascertain what had transpired.

However, the court declined to invalidate all of Section 99under First Amendment overbreadth concepts.

Originally Published by Foley Hoag, December 2020

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