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Project Veritas Action Fund v. Conley

United States District Court, D. Massachusetts

September 6, 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 a motion for a preliminary injunction to enjoin Defendant Daniel F. Conley from enforcing 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 officials engaged in their duties in public spaces. Defendant, the Suffolk County District Attorney, moves to dismiss on ripeness grounds.

         The Court assumes familiarity with its previous ruling on Project Veritas' First Motion for Preliminary Injunction. Project Veritas Action Fund v. Conley, No. 16-CV-10462-PBS, 2017 WL 1100423 (D. Mass. Mar. 23, 2017). The Court also assumes familiarity with the companion case, Martin v. Evans, No. 16-CV-11362-PBS, 2017 WL 1015000 (D. Mass. Mar. 13, 2017).

         After hearing, the Court ALLOWS the Motion to Dismiss without prejudice. Docket No. 72.


         For the purpose of the motion to dismiss, the facts are taken as true, as alleged in the first amended 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. In 2014, Project Veritas used “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. 48 ¶ 23. In September 2015, Project Veritas “exposed campaign finance violations in New York using undercover techniques.” Id. ¶ 24. It exposed “electoral malfeasance” in Nevada using similar recording techniques. Id. ¶ 25. Most recently, it “detailed the weakness of voter registration laws in New Hampshire by focusing on the surreptitiously recorded statements of government officials.” Id. ¶ 26.

         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. Project Veritas hopes to undertake undercover investigation of public issues in Boston and throughout Massachusetts. Id. ¶ 30. Specifically, Project Veritas alleges that it would like to investigate and report on the public controversy over “sanctuary cities” in Massachusetts and more generally the motives and concerns of Boston public officials regarding immigration policy and deportation. Docket No. 48 ¶ 22, 30.


         Courts evaluate motions to dismiss for ripeness under Federal Rule of Civil Procedure 12(b)(1). See Downing/Salt Pond Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d 16, 17 (1st Cir. 2011). In assessing the ripeness of Project Veritas' claim, the Court must take the complaint's well-pleaded facts as true and indulge all reasonable inferences in its favor. Id. “In resolving a Rule 12(b)(1) motion, we may also consider other materials in the district court record, including where those materials contradict the allegations in the complaint.” Id. Defendant did not seek discovery on the ripeness issue.


         “Article III restricts federal court jurisdiction to ‘Cases' and ‘Controversies.'” Reddy v. Foster, 845 F.3d 493, 499 (1st Cir. 2017) (citing U.S. Const. art. III, § 2). “Two of the limitation's manifestations are the justiciability doctrines of standing and ripeness, which are interrelated; each is rooted in Article III.” Id. (citing Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 n.5 (2014) (“[T]he Article III standing and ripeness issues in this case ‘boil down to the same question.'”)). “Much as standing doctrine seeks to keep federal courts out of disputes involving conjectural or hypothetical injuries, the Supreme Court has reinforced that ripeness doctrine seeks to prevent the adjudication of claims relating to ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.'” Id. (citing Texas v. United States, 523 U.S. 296, 300 (1998)). “‘The facts alleged, under all the circumstances, must show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of' the judicial relief sought.” Id. (quoting Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st Cir. 2016)). “The plaintiff[] bear[s] the burden of alleging facts sufficient to demonstrate ripeness. Even a facial challenge to a statute is constitutionally unripe until a plaintiff can show that federal court adjudication would redress some sort of imminent injury that he or she faces.” Id. at 501 (internal citations omitted).

         The determination of ripeness depends on two factors: “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Sindicato Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 8 (1st Cir. 2012) (quoting Abbott Labs v. Gardner, 387 U.S. 136, 149 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977)). “The fitness prong ‘has both jurisdictional and prudential components.' The jurisdictional component of the fitness prong concerns ‘whether there is a sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction in the federal courts.'” Reddy, 845 F.3d at 501 (quoting Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)). “The prudential component of the fitness prong concerns ‘whether resolution of the dispute should be postponed in the name of judicial restraint from unnecessary decision of constitutional issues.'” Id. (quoting Roman Catholic Bishop, 724 F.3d at 89).

         “The hardship prong is wholly prudential and concerns the harm to the parties seeking relief that would come to those parties from our withholding of a decision at this time.” Id. (internal citations omitted). “Generally, a ‘mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.'” Sindicato, 699 F.3d at 9 (quoting Simmonds v. I.N.S., 326 F.3d 351, 360 (2d Cir. 2003)). “However, the Supreme Court has made clear that when a plaintiff alleges ‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.'” Id. (quoting Babbitt v. United Farm Workers Nat'l. Union, 442 U.S. ...

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