Project Veritas Action Fund Defends Citizens’ First Amendment Rights for Undercover Secret Recording in First Circuit Court of Appeals

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(Boston, MA) Project Veritas Action Fund appeared in the US First Circuit Court of Appeals for the First Circuit yesterday to challenge Section 99 of Massachusetts law. This is a law that broadly restricts any sort of undercover recording.

PVA argues that, as a result of this law, the American public will miss out on newsworthy information derived from such recordings. Further, PVA states that Section 99 infringes on citizens’ First Amendment rights.

There are eleven states that believe it is the legislature’s responsibility to provide some level of privacy protection in conversations, but Massachusetts is the only state to fully apply privacy protections without consideration for the citizen’s right to secretly record. PVA argued that Massachusetts, like those eleven states, should narrow its law.

PVA has asked the court to strike down the Section 99 law ‘facially’, that is to declare it entirely void. PVA wants the court to allow the Massachusetts legislature a chance to go back to the drafting table and write a new law that complies with the First Amendment.

According to PVA’s attorney Ben Barr’s observation of the oral argument, it appeared that all of the judges (including former US Supreme Court Associate Justice, David Souter) expressed real skepticism about the Constitutionality of the Massachusetts law—referring to it as “sweeping too broadly” in several of their questions.

Ben Barr also observed that the specific line of questioning examines the state’s interest in securing privacy against the means the state employs to secure that privacy. In this case, an outright ban is simply too suppressive of speech and narrower tools could be used to protect truly private conversations.

In addition, the judges hinted that individuals were free to guard their own privacy—such as removing a discussion to a truly private place—instead of needing a law that simply prohibits newsgathering of items disclosed in public.

Here are a few of the exchanges between PVA Attorney Ben Barr, Judge Barron, and Judge Selya:

Ben Barr: Massachusetts makes a mockery of the most effective form of newsgathering, undercover journalism, by denying citizens the right to be able to go out into public, and to be able to gather information in the most effective way possible, that is, secret audio recording.

Judge Barron: What do you mean by “public?”

Ben Barr: I mean a place in particular where there is no reasonable expectation of privacy.  It brings me to the truly exceptional nature of Section 99.

Judge Barron: Just so I get it straight with the idea that everybody in this courtroom right now would have a First Amendment right to record these proceedings?

Ben Barr: Yes.

Judge Barron: That’s your position?

Ben Barr: Yes.

Judge Barron: Do you have a narrower position?

[laughter among those present]
…..

Judge Selya: Commonwealth has an interest in protecting the privacy of conversations. Everyone has some sort of right to the privacy of their conversations, full stop. And you can disagree with that as a matter of policy, but you’ve got to figure out why that’s wrong as a matter of Constitutional law…

Ben Barr: Primarily, it amounts to the tailoring and overbreadth issue, Judge Selya, while there is a legitimate governmental interest in protecting conversational privacy and 11 states have worked out test to do that. On the other end of the Constitutional equation is a right to be able to acquire information in public and report on that to the American people. So, being able to record a bribe occurring with a police officer on a…

Judge Selya: But Massachusetts is talking not only about governmental privacy, they’re talking about the privacy of all participants in these conversations, which typically take place between a government official and a private citizen.

Ben Barr: Yes, and actually as was noted by Judge Barron earlier, it is entirely capable that government officials and individuals are able to safeguard their own privacy. If they have a confidential conversation, or an informant, they’re able meet in a private place. We are not alleging the right to be able to invade doctors’ offices or police stations…

Judge Barron: Yeah, but you are saying that if I think that I’ve taken precautions, that I sometimes might sit on a bench in the park and speak in what I think is in pretty confidential tones with someone else, and you’re saying but I’m at risk of someone having a recording device, and if I didn’t notice it, that can then be sent all over the place, right?

Judge Selya: I want you to note that even in his hypotheticals, Judge Barron sees himself sitting on a bench.

(Laughter)

Judge Selya also addressed Massachusetts Assistant Attorney General, Eric Haskell:

Judge Selya to MA Assistant Attorney General Eric Haskell: Meeting with a confidential informant, if it’s done in public, what’s wrong with that being recorded?  If the police officer wants that meeting to be truly confidential, the police officer can control where the meeting is held.  Easy enough to hold it in private.

Judge Selya to MA Assistant Attorney General Eric Haskell: You’re saying that if John Doe comes along, sees a police officer conversing with a politician, for example, they both have their backs turned to him, he holds out, in plain view of everybody, a tape recorder and turns it on, or a cell phone, and turns on the recording function, alright?  They have their backs turned, but it’s in plain view to anyone who wants to walk.  Everyone in the Boston Common sees it, except maybe the two people who were talking, and you’re saying that is, or isn’t, a violation of the statute?

The ACLU had a more limited vision of how to tackle the Massachusetts recording law.

Representing the ACLU was Jessie Rossman, who said that “They focus exclusively on police officers, who, unlike other officials, are armed by the state and have the authority to take people into custody.”

After the hearing, Ben Barr said:

“We were pleased that the court held the Commonwealth of Massachusetts to accountability. This law is an outright ban on the most effective form of newsgathering—undercover journalism—and deprives the public of important information. It is difficult to imagine it surviving today’s review before the First Circuit.”

“If the First Amendment means anything, it means that citizens possess the power to hold accountable those in power. In 2020, using smartphones and digital recording devices to uncover political hypocrisy and self-dealing is the most effective means to do so and should be protected by the First Amendment.”

Project Veritas Action Fund will never cease fighting for Americans’ Constitutional rights. It is imperative that individual citizens are allowed to perform their First Amendment right to report on public and private corruption. For many citizen journalists, undercover recording is the most effective way of delivering newsworthy facts to the public.