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 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.
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).
hearing, the Court ALLOWS the
Motion to Dismiss without prejudice. Docket No. 72.
purpose of the motion to dismiss, the facts are taken as
true, as alleged in the first amended 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.
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.
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.
TO DISMISS STANDARD
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.
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).
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).
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. ...