United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
B. Saris Chief United States District Judge.
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. 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.
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
purposes of the motion to dismiss, the facts are taken as
true, as alleged in the verified complaint.
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.
secret recording often occurs in public places such as
polling places, sidewalks, and hotel lobbies.
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.
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
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. ¶
Motion to Dismiss Standard
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.
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).
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, ...