Project Veritas Action v. Conley: Undercover Newsgathering and the First Amendment

On March 4, Project Veritas Action Fund (PVA)  filed suit in Massachusetts federal court against Suffolk County District Attorney Daniel Conley, challenging the Massachusetts interception statute as unconstitutionally overbroad under the First Amendment. (I am co-counsel for PVA in the case.) Unlike wiretapping and eavesdropping restrictions in most states, Massachusetts prohibits citizens from secretly recording oral communications in any situation, an interpretation affirmed as an “unequivocal ban[]” in 2001 by the commonwealth’s supreme court.

PVA is one of the nation’s premiere undercover newsgathering organizations, and recently released several important stories from New Hampshire leading up to the state’s presidential primary, my personal favorite featuring the Bernie Sanders campaign appearing to receive tens of thousands of dollars in in-kind foreign contributions from the Australian Labor Party. But New Hampshire law is far friendlier to secret recording than Massachusetts, where PVA is as unequivocally banned as everyone else. And the penalties are harsh: willful interception in Massachusetts is punishable with fines up to ten thousand dollars and imprisonment of up to five years. Aggrieved persons may also bring civil action against those who intercept their communications and recover actual damages, punitive damages and attorney’s fees.

The lawsuit aims to have the law struck down on its face, allowing the Massachusetts General Court (the commonwealth’s legislature) to give it a much-needed revision.

In recent years, the act of filming police while they are undertaking official duties has led to cases nationwide against various wiretapping, eavesdropping and interception laws. Currently, the federal circuits are split along the contours of just how far the First Amendment goes against these laws. The First Circuit Court of Appeals, with jurisdiction over Massachusetts, has already issued several promising opinions. On a case-by-case basis the First Circuit has already carved out an exception to the Massachusetts law. In Glik v. Cuniffe in 2011, the First Circuit ruled that “[t]he filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within [First Amendment] principles[,]” and allowed an action under Section 1983 of the Civil Rights Act against Boston police officers to proceed. More recently, in the 2014 case Gericke v. Begin the First Circuit affirmed Glik and allowed a 1983 action to proceed against police officers in Weare, New Hampshire. 

Particularly in light of Glik, now nearing its fifth anniversary, the commonwealth has failed to amend its unequivocal ban on citizen interception. It is no comfort for PVA to litigate under the Civil Rights Act after its journalists are charged under an unconstitutional law—the law’s unequivocal ban must be struck down.

Furthermore, the suit argues the First Amendment must go beyond protecting the recording of government officials engaged in their duties in public and protect the recording of anyone who does not have a reasonable expectation of privacy in their oral communications. To put this into perspective, consider that the Massachusetts law is so broadly worded that one could be charged for secretly recording someone giving a speech in a public place. Perhaps Massachusetts law enforcement has learned from the Glik precedent and would not try to enforce the law this way, but this is no cure for overbreadth, as the Supreme Court ruled in United States v. Stevens: “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”

PVA v. Conley is a straightforward challenge that may have great impact on undercover newsgathering, whether by citizens or established organizations. Victory will not undo legitimate privacy protection against eavesdropping and wiretapping, but will secure public accountability and the free flow of information.