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Project Veritas Action Fund v. Conley

United States District Court, D. Massachusetts

March 23, 2017

DANIEL F. CONLEY, in his Official Capacity as Suffolk County District Attorney, Defendant.


          Patti B. Saris Chief United States District Judge.

         Plaintiff Project Veritas Action Fund (“Project Veritas”), a news gathering organization, brings facial and as-applied challenges to the Massachusetts Wiretap Statute, Mass. Gen. Laws ch. 272, § 99 (“Section 99”), on the ground that it violates the First and Fourteenth Amendments by prohibiting secret recording of the oral conversations of public and private individuals.[1] The verified complaint, brought under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983, seeks declaratory and injunctive relief. The Defendant, Suffolk County District Attorney, Daniel Conley, moves to dismiss on the grounds that plaintiff lacks standing and the complaint fails to state a claim.

         After hearing, the Court DENIES the Motion to Dismiss (Docket No. 26) in part and ALLOWS it in part. The Court holds that Project Veritas survives the standing challenge with respect to its claim that the state prohibition of the secret recording of private individuals violates the First Amendment. However, the Court holds that Section 99's ban on the secret recording of conversations by private individuals does not violate the First Amendment because the statute is narrowly tailored to promote the significant governmental interest of protecting the conversational privacy of Massachusetts residents. The Motion for Preliminary Injunction (Docket No. 21) is DENIED.


         For the purposes of the motion to dismiss, the facts are taken as true, as alleged in the verified complaint.

         Project Veritas is a national media organization primarily engaged in undercover journalism. Its undercover newsgathering techniques involve recording and intercepting oral communications of persons without their knowledge or consent.

         This secret recording often occurs in public places such as polling places, sidewalks, and hotel lobbies.

         These undercover techniques are used in news gathering in a variety of scenarios. In 2014, Project Veritas utilized “undercover newsgathering” to discover “a stark contrast between the public statements of a candidate for United States Senate in Kentucky and the statements of her campaign staff.” Docket No. 1 ¶ 22. In September 2015, Project Veritas “exposed campaign finance violations in New York using undercover techniques.” Id. ¶ 23. It exposed “electoral malfeasance” in Nevada using similar recording techniques. Id. ¶ 24. Most recently, it “detailed the weakness of voter registration laws in New Hampshire by focusing on the surreptitiously recorded statements of government officials.” Id. ¶ 25.

         Project Veritas has not previously engaged in any surreptitious recording in Massachusetts, though it wants to, because of a fear that utilizing undercover techniques in Massachusetts would expose it to criminal and civil liability under Section 99.[2] Project Veritas hopes to undertake undercover investigation of public issues in Boston and throughout Massachusetts. Id. ¶ 27. Specifically, Project Veritas alleges that it “would like to investigate the recently reported instances of landlords taking advantage of housing shortages in Boston where students may live in unsafe and dilapidated conditions. Likewise, [Project Veritas] would like to investigate the trustworthiness and accountability of government officials, including police officers, in a variety of public and non-public settings.” Id. ¶ 21.


         I. Motion to Dismiss Standard

         Courts evaluate motions to dismiss for lack of standing under Federal Rule of Civil Procedure 12(b)(1). See United Seniors Ass'n, Inc. v. Philip Morris USA, 500 F.3d 19, 23 (1st Cir. 2007). In assessing Project Veritas' standing, the court must take the complaint's well-pleaded facts as true and indulge all reasonable inferences in its favor. Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016). “[A]t the pleading stage, the plaintiff bears the burden of establishing sufficient factual matter to plausibly demonstrate his standing to bring the action. Neither conclusory assertions nor unfounded speculation can supply the necessary heft.” Id. at 731.

         The same basic principles apply to evaluating a Rule 12(b)(6) motion used to dismiss complaints that do not “state a claim upon which relief can be granted.” See Fed.R.Civ.P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, the Court must accept the factual allegations in the plaintiff's complaint as true, construe reasonable inferences in its favor, and “determine whether the factual allegations in the plaintiff's complaint set forth a plausible claim upon which relief may be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014).

         To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). To reach the threshold of plausibility, the allegations must be “more than merely possible.” Schatz v. Repub. State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Dismissal for failure to state a claim pursuant to Rule 12(b)(6) is appropriate when the complaint fails to set forth “factual allegations, either direct or inferential, ...

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