SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "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."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "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 revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, 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, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Justices test Harvard property claims, as civil rights attorney pleads passionately for return of slave images

Lanier's story in a 2020 short by Connecticut Public

This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.

The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion.  The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."

Harvard's position depends on a narrow view of the case as a simple question of property ownership.  As the saying goes, "possession is nine tenths of the law."  Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.

The Lanier family articulates a broader theory of the case.  Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold. 

The Lanier side divided its argument between two attorneys.  Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective.  First, he said:

The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history.  It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case.  And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.

Second, Crump paraphrased Frederick Douglass, that

the genealogical trees of black people do not flourish as a result of slavery.  In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage.  But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.

Third, Crump said:

This case presents a case study of Massachusetts's complicated history with slavery.  On one hand it has profited mightily from the cotton trade.  Its most powerful institution, Harvard University, has ties with slavery that date back centuries.  In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires.  In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart.  On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse.  John Adams said slavery is the great and foul stain upon the North American Union.

Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates.  Based on the colloquy, the smart money in the case is on Lanier.  Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure.  The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.

The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues.  In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized.  It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.

The probing revealed that counsel for Lanier would render the case large or small, depending on their needs.  Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman."  The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.

Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have.  Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education.  The ends don't justify the means, he said.

In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe."  Crump ducked the question.  "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.

Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case.  Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today.  Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.

"This court has the ability to finally free Renty and Delia from bondage," Crump concluded.  "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021).  Briefs are posted on the docket.  The oral argument will be posted at the Suffolk Law archive.  The Harvard Crimson published a thorough piece on the case in March.  A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.

[UPDATE, Nov. 3:] 

The oral argument is now posted in the Suffolk archive.  Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).

I add that Crump's argument, while quotable, was not as substantively important as Koskoff's.  I rewatched the oral argument today.  It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.

In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021.  Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.

I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right.  I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity.  Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.

Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.

Anti-SLAPP slaps justice, but Richard Simmons survives dismissal in privacy suit over tracking device

Sensational Simmons in 2011
(Angela George CC BY-SA 3.0)

Updated Oct. 17, 2023, to correct broken links.

In telephone consultation with an attorney-colleague just the other day, I had occasion to climb onto my soapbox and preach my anti-anti-SLAPP gospel.  I'm not sure when he hung up, but I kept preaching, because it's about the message, not the audience.

Then Richard Simmons popped up in my newsfeed.  More on that in a minute.

'Anti-SLAPP'

Anti-SLAPP is a mostly statutory court procedure meant to diffuse "strategic lawsuits against public participation," that is, essentially, to dispose quickly of lawsuits that are meant principally to harass a defendant who is participating in public life in a way protected by the First Amendment, namely, speaking or petitioning.

The prototype case is a land developer who sues environmental protestors for a tort such as interference with contract.  An anti-SLAPP statute allows the protestor-defendant to obtain a quick dismissal, because the plaintiff knows the protestor is not a business competitor, and the plaintiff's true aim is harassment via tort litigation.  Anti-SLAPP may be useful if, say, and I'm just spitballing here, you're a sexual assault complainant suing a politician with a habit of counterclaiming for defamation.  But the far more common use of anti-SLAPP motions is when a mass-media defendant is sued for, well, anything.

The communications bar loves anti-SLAPP.  And what's not to love?  What anti-SLAPP statutes demand varies widely across the states.  A defendant's anti-SLAPP motion might require only that the plaintiff re-submit the complaint under oath, or more aggressive statutes demand that the court hold a prompt hearing and dismiss the complaint if the plaintiff cannot show probability of success on the merits, a stringent pretrial standard reserved usually for preliminary injunctions.  Whatever the statute requires, the universal takeaway is that the blocking motion is good for the defense, providing another way to slow down litigation and require more money, time, and exertion by the plaintiff—who, let's not forget, usually is a victim of injury, even if the injury has not yet been adjudicated to be the fault of the defendant.

My problems with anti-SLAPP are legion, not the least of which is that the communications defense bar hardly needs a new defense at its disposal.  We already have the most overprotective-of-free-speech tort system in the world.   Without diving deep today, it will suffice to say that my opposition to anti-SLAPP fits neatly into my broader position that the famous civil rights-era innovation in First Amendment law embodied in New York Times v. Sullivan (U.S. 1964) should rather be described as an infamous and pivotal turn down a wrong and dangerous road, which is why courts around the world have widely rejected the case's central holding.  My position makes me about the most despised person at any communications defense bar conference, so I mostly skip the social events, after I've redeemed my free drink tickets.

Along Came Richard Simmons

When I talk about the abusive deployment of anti-SLAPP, I'm usually talking about the plaintiff's inability to prove Sullivan "actual malice," which, as a subjective standard, requires evidence of the defendant's state of mind.  In an especially wicked cruelty, a typical anti-SLAPP motion requires the plaintiff to show likelihood of success in proving defendant's actual-malicious state of mind before the plaintiff is allowed to use litigation discovery to collect evidence—all of which remains in the defendant's possession.

Bastion of the First Amendment
(2015 image by Mike Mozart CC BY 2.0)

So the rules of the game in First Amendment defamation are first rigged against the plaintiff, and then, when the plaintiff dares to complain anyway, we punish the audacity.  Rubbing salt into the wound, anti-SLAPP laws may also then require the plaintiff to pay the corporate media defendant's legal fees, a bankrupting prospect for the everyday-Joe plaintiff who might have been victimized by the careless reporting of a profits-churning transnational news company.

What I don't usually talk about is the kind of thing that apparently happened lately to Richard Simmons.  The once-and-future fitness guru—don't miss Dan Taberski's podcast Missing Richard Simmons (e1), which, however "morally suspect," might be my favorite podcast ever—alleged in a California invasion-of-privacy lawsuit that celebrity gossip rag In Touch Weekly hired someone to put a tracking device on Simmons's car.  As media, do, and maybe now you to start to see the problem, In Touch Weekly asked for dismissal under California's powerful anti-SLAPP statute, putting to the test Simmons's audacious challenge to the shining gold standard of American journalism.

Fortunately in this case, a trial judge, and this week a California court of appeal, held that news-gathering through trespass, or intrusion, is not what anti-SLAPP is made to protect.  Correspondingly, there is no First Amendment defense to the tort of invasion of privacy by intrusion.  So Simmons's case may resist anti-SLAPP dismissal.

Also fortunately, Richard Simmons has the financial resources and determination to fight a strong invasion-of-privacy case all the way through an appeal before even beginning pretrial discovery.  This isn't his first rodeo.  Richard Simmons is a survivor.

Someone needs to give Richard Simmons a law degree, and one day I won't feel so alone at the comm bar cocktail party.

The case is Simmons v. Bauer Media Group USA, LLC, No. B296220 (Cal. Ct. App. 2d App. Dist. 4 Div. May 21, 2020).  Parent-company Bauer Media Group, by the way, owned the gossip magazines that lost to Rebel Wilson in her landmark Australian defamation case.

Now move those buns.

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

• Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
• Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
• Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.

• Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
• In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
• Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
• Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
• King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
• United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
• VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
• Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.

Court's strike against Mass. wiretap law for recording police raises bigger questions of 'right to receive,' freedom of information

The "right to receive" expression or information is the long neglected, often doubted, and sometimes maligned sibling of the freedom of expression.  While the First Amendment posits the expression of information that one possesses, the right to receive posits the acquisition of information as an essential prerequisite.  In other words, without access to information, the freedom of expression is meaningless.

By Khairil Yusof (CC BY 2.0).

More broadly conceptualized, the right to receive is an umbrella that covers a great many propositions in civil rights discourse, especially the freedom of information or access to information (FOI or ATI), and including also the right to news-gathering and "citizen journalism"; the right of access to meetings, libraries, and public facilities such as prisons; and, most recently, the right to record police.  Historically, American constitutional law widely rejected propositions in this vein, evidenced by the famously statutory U.S. Freedom of Information Act, 5 U.S.C. § 552, which nonetheless has exerted substantial influence in the advent of ATI as a constitutional and human right elsewhere in the world.

Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts.  A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition.  A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests. 

Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply.  But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.

In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:

On the 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 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

James O'Keefe speaks at 2018 Student Action Summit, West Palm Beach,
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).

The ruling came upon joint consideration of two cases involving different partisan affilliations.  In one case, Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, sued under civil rights law to combat authorities' investigation of them for openly and secretly recording police activity in pedestrian and traffic stops and at protests.  A second case involved the conservative activist James O'Keefe and his Project Veritas Action Fund (PVA).  PVA sought to effect secret recordings, and not to be criminally prosecuted for them, in Massachusetts in a broader and intriguing list of scenarios:

• "landlords renting unsafe apartments to college students;
• "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
• "'protest management' activities by both government officials and private individuals related to Antifa protests; and 
• "interactions with Harvard University officials to research its endowment and use of federal funds."

As the court acknowledged, the First Circuit previously joined the majority trend in courts to recognize a constitutional right (subject to reasonable time-place-manner regulation) to record police in public.  Considering the extant threat of prosecution, the court found sufficient merit in plaintiffs' claims to survive ripeness review. 

C.J. Saris

The court then found that application of the law to recording public officials in their official capacity in public places could not survive First Amendment intermediate scrutiny: "narrowly tailored to serve a significant government interest."  Following the First Circuit's example, the court ruled that accountability outweighed slimmer competing interests in public order and officials' personal privacy.  The court left to future cases to determine whether the rule here may be extended to recordings in private venues that are places of public accommodation, such as a restaurant, and to determine who besides police are "government officials."

The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service.  Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.

As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable.  A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.