Federal Court Strikes Down Massachusetts Ban on Secretly Recording Government Officials in Public

Client Alerts · February 8, 2019

The U.S. District Court for the District of Massachusetts ruled in December that the state’s prohibition on secretly recording government officials in public is unconstitutional.  In a victory for government transparency, Chief U.S. District Judge Patti B. Saris found that the Massachusetts wiretap statute violated the First Amendment as applied to secret recording of governmental officials performing their duties in public. “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,” the judge wrote.

The decision resolved constitutional challenges to the law brought by the Project Veritas Action Fund, a conservative political organization, and Boston activists K. Eric Martin and René Pérez, who were represented by the ACLU of Massachusetts. The Massachusetts wiretap statute, enacted in 1968, criminalizes the secret recording of an oral communication through an “intercepting device.”

Prior to this decision, a First Circuit ruling held that the state could not criminalize the open recording of police officers in public. However, journalists and members of the public who wished to document the behavior of government officials secretly could still face criminal penalties—something Judge Saris has now ruled unconstitutional.

The parties will return to court in March to determine the extent of the court’s order on the plaintiffs’ request for an injunction against further enforcement of the wiretap statute in this context.

“The wiretap statute is intended to protect privacy. This commonsense ruling affirms that government employees, who work for the public, do not have a privacy interest in what they do or say in public spaces. Government accountability is at the heart of the First Amendment, and this ruling vindicates that powerful interest,” said Prince Lobel Media and First Amendment attorney Jeffrey Pyle.

The court’s decision can be found here.

To learn more about the information presented here, please contact Michael Lambert, the author of this alert, at 617.456.8116 or mlambert@princelobel.com, or Robert Bertsche, head of Prince Lobel’s Media and First Amendment Law Practice Group, at 617.456.8018 or rbertsche@princelobel.com.