First Circuit Creates Exception to Massachusetts Wiretap Statute Based on First Amendment Rights, Allows Citizens and Press to Record Police Activity Without Permission

The First Circuit’s recent opinion in Project Veritas Action Fund v. Rollins, upheld a challenge to the Massachusetts anti-wiretap law, Mass. Gen. Laws ch. 272, § 99, carving out an exception for certain activity protected by the First Amendment.   The opinion begins:

Massachusetts, like other states concerned about the threat to privacy that commercially available electronic eavesdropping devices pose, makes it a crime to record another person’s words secretly and without consent. But, unlike other concerned states, Massachusetts does not recognize any exceptions based on whether that person has an expectation of privacy in what is recorded. See Mass. Gen. Laws ch. 272, § 99 (“Section 99”). As a result, Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer’s mistreatment of a civilian in a city park as it is for a revengeseeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse. The categorical and sweeping nature of Section 99 gives rise to the important questions under the First Amendment to the United States Constitution that the challenges that underlie the consolidated appeals before us present.

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Section 99 violates the First Amendment by prohibiting the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces. We also affirm the District Court’s order dismissing Project Veritas’s First Amendment overbreadth challenge for failing to state a claim on which relief may be granted.

The 72-page opinion has a lengthy description of the origins of Section 99 and is worth reading for that alone.   On the merits, the First Circuit equated unauthorized recording to more traditional forms of newsgathering:

a citizen’s audio recording of on-duty police officers’ treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer’s knowledge, can constitute newsgathering every bit as much as a credentialed reporter’s after-the-fact efforts to ascertain what had transpired.

However, the court declined to invalidate all of Section 99 under First Amendment overbreadth concepts.

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