Ruling on complaints from left and right, a federal judge says Massachusetts wiretap law doesn't apply to people who make surreptitious recordings of on-duty public officials
When the right and left of the political spectrum defend the First Amendment on identical grounds, free speech triumphs — even if neither side wants to share the glory after the fact.
All of that came to pass with a federal judge’s decision that a Massachusetts state law cannot punish people for secretly taping police and other government officials in public, a ruling for which right-wing prankster James O’Keefe and the ACLU of Massachusetts each were quick to claim credit.
In a 44-page order issued Monday, December 10, Judge Patti B. Saris, Chief U.S. District Court Judge for the District of Massachusetts, ruled that the Bay State’s 1968 wiretap law, referred to as “Section 99,” was overbroad and unconstitutional in its comprehensive ban on surreptitious audio and wire recording.
Ruling on what she called the “core constitutional issue,” Saris held that the “secret audio recording of government officials, including law enforcement officials, performing their duties in public” is shielded by the First Amendment and, as such, subject only to “reasonable time, place, and manner restrictions.”
Saris noted that courts have already decided that Section 99 does not apply to audio and video recording of public officials in public places. Nor does the statute apply to secretly obtained video without audio.
The judge cited precedents from the First Circuit (of which her district is a part), to the effect that gathering information about government employees “in a form that can readily be disseminated to others” helps to guarantee the free discussion of government affairs and therefore serves “a cardinal First Amendment interest.”
The ruling, which may help challenges to similar laws in other states, came in response to two separate civil-rights lawsuits. One was brought by O’Keefe’s Project Veritas Action Fund, an organization that works in conjunction with the controversial website Project Veritas. The ACLU of Massachusetts filed the other suit, on behalf of Boston residents K. Eric Martin and René Pérez, two activists who have recorded on-duty Boston cops on multiple occasions.
For Further Reading:
Federal Judge Patti B. Saris’s Ruling on Two Challenges to Massachusetts Law Prohibiting Secret Recordings (a.k.a. “Section 99”)
Pérez and Martin jointly sued the Boston Police Department and the Suffolk County District Attorney’s Office, arguing that they wanted to secretly record police interactions with the public but feared arrest and prosecution if they did so. Project Veritas sued the Suffolk County D.A., asserting that inside Massachusetts, Section 99 stymies the gotcha-style investigations that are the website’s stock-in-trade. (Violations of the statute are punishable by a fine of not more than $10,000, up to five years in prison, or both.)
In both cases, Saris concluded that the plaintiffs’ fears were justified, and that the law had a chilling effect on free speech.
Since 2011, Saris noted, the Suffolk County D.A. had opened at least eleven case files involving a felony charge under Section 99, while the BPD had applied for criminal complaints against nine individuals on Section 99 grounds. (The court acknowledged that it was unclear to what extent the cases might have overlapped.) Additionally, the judge noted that the BPD actively trains its officers in the application of the law.
Attorneys for the police and the D.A. claimed that cops and other government employees have privacy rights under the law. Saris shot down that argument, asserting that those rights must be balanced against the First Amendment rights of all. Government officials, added the judge, have “diminished privacy interests” as a result of having taken a job in the public sector.
In a tacit acknowledgement of their relationship as strange legal bedfellows, the Massachusetts ACLU and O’Keefe each hailed Saris’s ruling in online statements, neither of which deigned to mention the other’s role.
In the statement released by the ACLU of Massachusetts, executive director Carol Rose indulged in a victory lap, asserting that Saris’s decision “reaffirms that the fundamental right to record police officers does not disappear when a recording device is [hidden].”
The statement noted that the civil-liberties group had filed its complaint in June 2016. It quoted Martin and Perez. But it made nary a mention of O’Keefe or the Veritas suit, which was filed in March 2016.
O’Keefe went on his own gloating spree. He crowed on his organization’s website that Project Veritas had made “First Amendment history” with the victory. In a YouTube video hailing Saris’s decision, O’Keefe called the ruling “a blow to censorship and corruption” and asserted, “Undercover recordings are powerful, the court admitted. And this decision validates the work of Project Veritas and Project Veritas Action Fund.”
Neither of Veritas’s broadsides acknowledged the role the ACLU played in the case.
This is by no means the first time the Massachusetts ACLU has gone to the legal mat for residents of the Bay State. When the organization was chartered in 1920 as the Civil Liberties Union of Massachusetts, it was the first offshoot of the national ACLU, which had been founded earlier that year.
“In the 1920s, the Civil Liberties Union of Massachusetts stepped in to defend birth control pioneer Margaret Sanger’s right to speak on the Boston Common,” the group touts on its website. “In 1936, we challenged the ban on publication of Lillian Hellman’s The Children’s Hour, which was considered scandalous due to its ‘lesbian content.’ In 1938, CLUM opposed efforts by Boston Police Commissioner Joseph F. Timilty to ‘ban in Boston’ issues of Life magazine, simply for featuring a story called ‘The Birth of a Baby.’”
The group broke with its national parent on some issues, standing behind targets of the House Committee on Un-American Activities in the ’50s and backing activists who opposed the draft during the Vietnam War.
Other points of pride: Moe v. Secretary of Administration and Finance (1981), which affirmed that the state’s constitution guarantees a woman’s right to seek an abortion; consistent and concerted opposition to the death penalty; numerous challenges to racial profiling during traffic stops; and equal rights for the LGBTQ population.
O’Keefe, meanwhile, has a shorter and more checkered résumé.
In 2009, he kneecapped the progressive-minded Association of Community Organizations for Reform Now (ACORN), airing heavily edited, hidden-camera videos in which he and a female accomplice appeared to get ACORN employees to sign on to cockamamie schemes for illegal activities, such as setting up a house of prostitution and smuggling women into the United States for sex work.
The videos, circulated on YouTube, cost ACORN crucial Congressional funding, and the organization shut down in 2010. Ultimately, investigators would determine that ACORN staffers had committed no criminal violations; a lawsuit by one former ACORN employee resulted in a settlement wherein O’Keefe paid the plaintiff $100,000 and issued an apology.
Despite the slap on the wrist, O’Keefe had emerged from obscurity as a slayer of left-wing dragons. His subsequent schemes have met with mixed results.
In 2010, he and three others pleaded guilty to a misdemeanor count of entering the New Orleans office of Democratic U.S. Senator Mary Landrieu under false pretenses, in a caper that had his codefendants dressing up as telephone repairmen.
Veritas stings since then have taken aim at NPR, CNN, the New York Times, and the Washington Post. Some drew blood, others missed their mark.
According to a December 2017 story in the New York Times , Project Veritas has grown to 40 employees and claims $16 million in contributions since O’Keefe founded the organization in 2010.
And in spite of his ups and downs, O’Keefe can claim one fellow traveler who is unlikely ever to come to the defense of the Massachusetts ACLU: President Donald Trump.
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