United States District Court, D. Massachusetts
K. ERIC MARTIN and RENÉ PÉREZ, Plaintiffs,
WILLIAM GROSS, in his Official Capacity as Police Commissioner for the City of Boston, and DANIEL F. CONLEY, in his Official Capacity as District Attorney for Suffolk County, Defendants. PROJECT VERITAS ACTION FUND, Plaintiff,
DANIEL F. CONLEY, in his Official Capacity as Suffolk County District Attorney, Defendant.
MEMORANDUM AND ORDER
B. SARIS, CHIEF UNITED STATES DISTRICT JUDGE
two cases challenge the application of Mass. Gen. Laws ch.
272, § 99 (“Section 99”) to secret audio
recordings in Massachusetts. Section 99, in relevant part,
criminalizes the willful “interception” of any
“communication.” Mass. Gen. Laws ch. 272, §
99(C)(1). An “interception” occurs when one is
able “to secretly hear, secretly record, or aid another
to secretly hear or secretly record the contents of any wire
or oral communication through the use of any intercepting
device” without the consent of “all parties to
such communication.” Mass. Gen. Laws ch. 272, §
99(B)(4). Thus, the statute does not apply to open (or
non-secret) recording or to video recording (without audio).
See id.; Commonwealth v. Hyde, 750 N.E.2d 963, 964
(Mass. 2001) (holding that Section 99 “strictly
prohibits the secret electronic recording . . . of any oral
plaintiffs in Martin argue that Section 99 violates
the First Amendment insofar as it prohibits the secret audio
recording of police officers performing their duties
in public. The plaintiff in Project Veritas makes a
similar, though broader, argument: that Section 99 violates
the First Amendment insofar as it prohibits the secret audio
recording of government officials performing their
duties in public. The parties in each case also clash over
certain ancillary issues that are discussed in more detail
core constitutional issue, the Court holds that secret audio
recording of government officials, including law enforcement
officials, performing their duties in public is protected by
the First Amendment, subject only to reasonable time, place,
and manner restrictions. Because Section 99 fails
intermediate scrutiny when applied to such conduct, it is
unconstitutional in those circumstances.
following facts, drawn from the summary judgment record in
each case, are not subject to genuine dispute. I. Martin
v. Gross A. The Parties The plaintiffs K. Eric Martin
and René Pérez are two private citizens who
live in Jamaica Plain, Massachusetts. The defendants are
Suffolk County District Attorney Daniel Conley and City of
Boston Police Commissioner William Gross.
The Plaintiffs' Secret Recordings
2011, Martin has openly recorded police officers performing
their duties in public at least 26 times; Pérez has
done so 18 times, often live-streaming his recordings. The
plaintiffs' recordings of police have included one-on-one
interactions, traffic and pedestrian stops of others, and
protests. Between the two of them, the
plaintiffs have wanted to secretly record police officers
performing their duties in public on at least 19 occasions
since 2011, but have refrained from doing so. Both have
stated that their desire to record secretly stems from a fear
that doing so openly will endanger their safety and provoke
hostility from officers.
plaintiffs have not advanced any specific plans or intentions
to surreptitiously record police officers in the course of
this litigation. But Pérez stated that he would not
rule out secretly recording police officers in various
sensitive situations and that he intended to live-stream any
secret recordings he is permitted to make. Neither Martin nor
Pérez has ever been arrested for violating Section 99.
Enforcement of Section 99
2011, the Suffolk County District Attorney's Office
(“SCDAO”) has opened at least 11 case files that
involve a felony charge under Section 99. These have included
Section 99 charges where the person recorded was a police
officer performing her duties in public. During the same
period, the Boston Police Department (“BPD”) has
applied for a criminal complaint on a Section 99 violation
against at least nine individuals for secretly recording
police officers performing their duties in public.
asked what governmental interest Section 99 advances, the
district attorney asserted that it protects individuals'
privacy rights -- specifically, the right of citizens and
public officials alike to be on notice of when they are being
recorded. Asked the same question, the police commissioner
referred generally to Section 99, its legislative history,
and judicial decisions interpreting the statute.
Police Training on Section 99
99 is one of several topics on which BPD officers receive
training. The methods of training include training bulletins,
training videos, and in-service training. In all, BPD
recruits receive 50 to 60 hours of criminal law instruction
at the police academy. The instructor teaches from his own
textbook, which touches on many, but not all, crimes under
Massachusetts law. The text includes a segment on Section 99
--one of over 150 sections discussing various criminal law
topics. BPD officers are also instructed using at least two
other criminal law manuals that similarly include segments on
Section 99 among 150 to 200 other criminal laws.
BPD has created a training video and a training bulletin
related to Section 99. Since 2009, BPD has published 28
training videos; one of them related to Section 99. In recent
years, BPD has disseminated 22 training bulletins. One of
them is related to Section 99, and it has been circulated
video tells officers that Section 99 prohibits only
secret recording. It depicts two scenarios of
citizens recording police -- one openly and one in secret --
and instructs officers that the first is not a violation of
Section 99, but the second is. The video became mandatory
viewing for current officers. New recruits watch it as well.
bulletin describes two court cases where defendants were
convicted for secretly recording police officers performing
their duties in public, instructing officers that they have a
“right of arrest” whenever they have probable
cause to believe an individual has secretly recorded a
conversation. It was first circulated in November 2010, then
again in October 2011, and most recently in May 2015. The
2011 and 2015 circulations are the only bulletins since 2011
that have required police commanders to read the bulletin
aloud to their officers at roll call. A memo accompanying the
2011 recirculation explicitly references the First Circuit
decision in Glik v. Cunniffe, 655 F.3d 78 (1st Cir.
2011), discussed in more detail below.
Martin plaintiffs' claim, brought under 42
U.S.C. § 1983, alleged that Section 99 violates the
First and Fourteenth Amendments as applied to the secret
recording of police officers engaged in their duties in
public places. Resolving a motion to dismiss, the Court held
that the plaintiffs had adequately stated a claim that
Section 99 violates the First Amendment. The Court also
rejected a challenge to the plaintiffs' standing, held
that the complaint adequately stated a claim for municipal
liability, and held that Pullman abstention was
defendants now challenge the claim on the grounds of
standing, ripeness, and municipal liability. The district
attorney also asks the Court to draw adverse inferences
against Martin. The parties have filed cross-motions for
summary judgment on the constitutional claim.
Project Veritas Action Fund v. Conley
plaintiff, Project Veritas Action Fund (“PVA”),
is a nonprofit organization that engages in undercover
journalism. The defendant is the Suffolk County District
PVA's Secret Recording Practices
a history of investigating government officials, candidates
for public office, and others through the use of secret
recording. The organization also investigates suspected
fraud, abuse, and corruption. PVA would like to secretly
record government officials in Massachusetts, including when
they make statements in public places while performing their
public duties. PVA has refrained from doing so due to Section
general, PVA decides to investigate a story based on
considerations like cost, time, level of public interest or
newsworthiness, and the likelihood that it will obtain
“candid information” from sufficiently high-level
individuals. Once an investigation is assigned to a PVA
reporter, he or she develops a “cover story”
designed to develop trust with the source. The “cover
story” is “rarely” true, but PVA enhances
its verisimilitude by, for instance, creating fake email or
social media accounts, printing false business cards, or
creating a new business entity. Often the “cover
story” involves volunteering or interning at a target
organization, or donating to it. In other cases, PVA
reporters use flattery, sex appeal, or romantic overtures to
appeal to target sources.
reporters use “sophisticated” recording
equipment, including hidden necktie cameras, purse cameras,
eyeglass cameras, and cameras whose lenses are small enough
to fit into a button or rhinestone. They have made recordings
during campaign staff meetings, within a target's
offices, and while meeting with representatives of a target
organization. They have also recorded pretextual
“dates” with target individuals and conversations
ultimate product is an edited “video report” that
is released to the public via its website and/or YouTube
channel. The final report leaves out portions of the raw
footage. The record includes several examples of PVA's
final reports and the raw footage used to create them.
case, PVA identifies four specific projects that it has
refrained from conducting on account of Section 99. The
projects involve secretly recording: (1) landlords renting
unsafe apartments to college students; (2) government
officials, including police officers, legislators, or members
of the Massachusetts Office for Refugees and Immigrants, to
ascertain their positions on “sanctuary cities”;
(3) “protest management” activities by both
government officials and private individuals related to
Antifa protests; and (4) interactions with Harvard University
officials to research its endowment and use of federal funds.
PVA would like to send its journalists into Massachusetts to
develop leads on these and other stories that may emerge.
original complaint challenged the constitutionality of
Section 99 facially and as applied to it, targeting the
statute's prohibition on secret recording in a public
place (Count I) and secret recording of oral communications
of individuals having no reasonable expectation of privacy
(Count II). In March 2017, the Court dismissed PVA's
claims insofar as they challenged the application of Section
99 to the secret recording of private conversations, and
insofar as they presented facial and overbreadth challenges
to Section 99. See Project Veritas Action Fund, 244
F.Supp.3d at 264-66.
preserved its appellate rights as to those rulings, PVA has
filed an amended complaint and has narrowed its claim to
challenge only Section 99's application to the secret
recording of government officials engaged in their duties in
public spaces. The district attorney has moved to dismiss on
ripeness grounds. Both parties seek summary judgment on the
Summary Judgment Standard
is entitled to summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[T]he mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphases in
original). An issue is genuine “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id. at 248. A fact is
material if it “might affect the outcome of the suit
under the governing law.” Id.
Setting the Scene: Glik and
discussion that follows requires an understanding of two
First Circuit decisions: Glik v. Cunniffe, 655 F.3d
78 (1st Cir. 2011), and Gericke v. Begin, 753 F.3d 1
(1st Cir. 2014).
Glik, the plaintiff was arrested for using his cell
phone's digital video camera to openly film several
police officers arresting someone on the Boston Common. 655
F.3d at 79, 87. He was recording audio as well as video on
the cell phone. Id. at 80. The plaintiff was charged
with violating Section 99 and two other state-law offenses.
Id. at 79. These charges were later dismissed.
Id. The plaintiff sued the police under 42 U.S.C.
§ 1983, claiming that his arrest for audio and video
recording of the officers constituted a violation of his
rights under the First and Fourth Amendments. Id.
The police officers raised a qualified immunity defense.
Id. A central issue on appeal was whether the arrest
violated the plaintiff's First Amendment rights -- in
other words, “is there a constitutionally protected
right to videotape police carrying out their duties in
public?” Id. at 82.
First Circuit answered affirmatively. Id. It held
that the First Amendment's protection “encompasses
a range of conduct related to the gathering and dissemination
of information.” Id. The First Amendment
prohibits the government “from limiting the stock of
information from which members of the public may draw.”
Id. (quoting First Nat'l Bank v.
Bellotti, 435 U.S. 765, 783 (1978)).
The filming of government officials engaged in their duties
in a public place, including police officers performing their
responsibilities, fits comfortably within these principles.
Gathering information about government officials in a form
that can readily be disseminated to others serves a cardinal
First Amendment interest in ...