The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Project Veritas Action Fund v. Rollins, decided yesterday by the First Circuit (in an opinion by Judge David Barron, joined by Retired Justice David Souter and Judge Bruce Selya):
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. 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 revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse….
The court held that the law was unconstitutional "insofar as it criminalizes the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces" (the argument made by plaintiffs Eric Martin and René Pérez, whose case was joined for purposes of appeal with Project Veritas's broader challenge):
[T]he First Amendment limits the government regulation of information collection, as our decisions in Glik v. Cunniffe (1st Cir. 2011) and Gericke v. Begin (1st Cir. 2014) show. See also Branzburg v. Hayes (1972) ("[W]ithout some protection for seeking out the news, freedom of the press could be eviscerated.")…. That is so … because "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'"
[There is] "particular significance" of First Amendment newsgathering rights "with respect to government," … [because] "the state has a special incentive to repress opposition and often wields a more effective power of suppression." … [P]rotecting the right to collect information about government officials [and especially "law enforcement officials"] "not only aids in the uncovering of abuses, but also may have a salutary effect on the functioning of government more generally." …
[The logic behind Glik and Gericke and similar cases from other circuits] encompass[es] recording even when it is conducted "secretly," at least as Section 99 uses that term…. [S]uch undetected recording can itself serve "a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs,'" and "not only aids in the uncovering of abuses … but also may have a salutary effect on the functioning of government more generally."
In fact, … audio recording of that sort can sometimes be a better tool for "[g]athering information about" police officers conducting their official duties in public, and thereby facilitating "the free discussion of governmental affairs" and "uncovering … abuses," than open recording is. That is not only because recording undertaken from a distance—and thus out of plain sight of the person recorded—will often be the least likely to disrupt the police in carrying out their functions. It is also because recording that is not conducted with the actual knowledge of the police officer—even if conducted proximate to the person recorded—may best ensure that it occurs at all, given the allegations that the Martin Plaintiffs set forth about the resistance from official quarters that open recording sometimes generates.
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. The circumstances in which such recording could be conducted from a distance or without the officers' knowledge and serve the very same interest in promoting public awareness of the conduct of law enforcement—with all the accountability that the provision of such information promotes—are too numerous to permit the conclusion that recording can be prohibited in all of those situations without attracting any First Amendment review…..
After concluding that such information gathering is presumptively protected by the First Amendment, just as speech is, the court then applied intermediate scrutiny, which is the general test for content-neutral speech restrictions. Under that test, a content-neutral law must be narrowly tailored to an important government interest, and leave open ample alternative channels, and "section 99 is not narrowly tailored to further either of the identified governmental interests—namely, preventing interference with police activities and protecting individual privacy—notwithstanding their importance."
The government is under no obligation to permit a type of newsgathering that would interfere with police officers' ability to do their jobs…. But, insofar as the mere prospect of being recorded leads officers to feel the need to refrain from uttering words or engaging in actions that would constitute misconduct, it hardly interferes with their capacity to perform their official duties. Nor does the record show how heightened consciousness on the officers' part that recording may be occurring, even if the officers are not on specific notice that it actually is, would appreciably alter their ability to protect the public either in gross or at the retail level of more individualized interactions.
It was suggested at oral argument that officers seeking to converse with confidential informants could be constrained in their ability to do so, in light of the possibility that any such exchange would be recorded by an unknown and unseen observer. But, we presume officers are already careful when engaging in such sensitive conversations within earshot of others, and the record offers no other details about how any such heightened caution might disrupt police practice. Thus, the record provides no support for the conclusion that Section 99 reduces interference with official police responsibilities in any meaningful way with respect to at least the mine-run of circumstances—whether involving an arrest in a park, a roadside traffic stop, or a gathering in a foyer following a public meeting in a public building—in which police officers may be "secretly" recorded without their consent while discharging their official functions in public spaces.
Accordingly, we conclude that the statute's outright ban on such secret recording is not narrowly tailored to further the government's important interest in preventing interference with police doing their jobs and thereby protecting the public. Rather, despite a record that does little to show how secret, nonconsensual audio recording of police officers doing their jobs in public interferes with their mission, Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing….
The District Attorney contends that … [Massachusetts] has a "significant interest" in "assur[ing] that its citizens are aware of when they are being recorded, safeguarding a specific type of privacy—not freedom from being recorded, but rather notice of being recorded." The District Attorney also presses the related contention that protecting such a privacy interest helps ensure "the vibrancy of  public spaces and the quality of the discourse that occurs there" by allowing speakers to take comfort in the fact that they will not be unwittingly recorded.
Protecting the privacy of the citizens of Massachusetts is a legitimate and important governmental interest. But, as we noted in Glik, "[i]n our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights." That includes the loss of some measure of their privacy when doing their work in public spaces. See Thus, even if there might be circumstances in which officers—while in public spaces and working—have some privacy interest that the prospect of secret recording could threaten, the total ban on all such audio recording of any of their official activities in public spaces simply because it qualifies as being done "secretly" … is too unqualified to be justified in the name of protecting that degree of privacy.
Rather than dispute this point, the District Attorney focuses on the fact that private citizens in the vicinity of the officers are not themselves governmental employees, let alone law enforcement officers on the job. She argues that "[c]ivilians have many reasons to voluntarily interact" with government officials, including police officers, in public and that even civilians who have no intention of interacting with police "might simply be within audible recording range." Yet, the District Attorney notes, their words may be picked up by the recording that the Martin Plaintiffs contend they have a First Amendment right to undertake without those persons having any notice that recording is taking place.
In pressing this point, the District Attorney contends that special attention must be paid to the fact that "when a recording is made surreptitiously, the person being recorded unwittingly becomes a captive." She supports this argument by invoking the Supreme Court's captive-audience cases. In that line of cases, the Court recognized that government can protect an "interest" in "avoid[ing] unwelcome speech" if "the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure." Hill v. Colorado (2000). The District Attorney argues that the recording of an unwitting private citizen is tantamount to rendering that person a captive because "that person is unaware of the recording, and thus is deprived of any meaningful opportunity to do anything about it."
But, the captive-audience line of authority concerns restrictions on expression that the government may impose to protect persons from being subjected to speech they wish to avoid. The risk of being subjected to unwanted speech, of course, is not a concern here. Moreover, the only individuals who will be recorded by the Martin Plaintiffs are those in public spaces who are within earshot of police officers and choose to speak. Thus, we do not see how—across the board—the proposed secret recording results in "substantial privacy interests … being invaded in an essentially intolerable manner." …
We can envision circumstances in which an individual who is interacting with (or in the vicinity of) a police officer might have a particularly heightened reason to wish to have notice that her comments are being recorded. Cf. Fla. Star v. B.J.F. (1989) (recognizing a privacy interest in the identity of rape victims); United States v. Tse (1st Cir. 2004) (recognizing the "important concern" of preventing unnecessary embarrassment to witnesses). But see Branzburg v. Hayes (1972) (minimizing the interest of newspaper informants who wish to remain anonymous where "[t]hey may fear that disclosure will threaten their job security or personal safety or that it will simply result in dishonor or embarrassment"). Notice of recording may help such private individuals avoid the shame or embarrassment of the recording of their unfiltered comments or help prevent their statements from being taken out of context.
But, as a general matter, an individual's privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer. Thus, we conclude that Massachusetts may not deploy the blunderbuss prohibitory approach embodied in Section 99 to protect civilians in the core set of situations where their privacy interests may be heightened.
In light of our analysis to this point, we need not address whether the statute leaves open viable alternative channels for First Amendment activity. We are not persuaded, however, by the District Attorney's assertion that Section 99 "preserves adequate alternative channels" because it "does not limit open recording in any way." "[A]udio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public," and the undisputed record supports the Martin Plaintiffs' concern that open recording puts them at risk of physical harm and retaliation and thereby undermines its capacity to serve as an adequate alternative means of newsgathering if the type of recording at issue here is barred.
The court concluded, however, that Project Veritas's broader challenge to "the secret recording of 'individuals who lack any reasonable expectation of privacy'"—including both government officials beyond police officers, and people who aren't government officials—wasn't ripe for challenge, given the way Project Veritas had litigated the case:
The contrast between the narrowness of Project Veritas's plans [for engaging in conduct that might violate the law] and the breadth of the remedy that it has requested leads to the concern that it has not adequately shown that it intends to engage in much of the conduct covered by the relief it seeks…. "The ripeness doctrine reflects a judgment that the disadvantages of a premature review that may prove too abstract or unnecessary ordinarily outweigh the additional costs of—even repetitive—[more focused] litigation." …
The concern that this disconnect renders this dispute hypothetical and abstract rather than real and concrete is compounded by the fact that the First Amendment analysis might be appreciably affected by the type of [person] who would be recorded. It is hardly clear that a restriction on the recording of a mayor's speech in a public park gives rise to the same First Amendment concerns as a restriction on the recording of a grammar school teacher interacting with her students in that same locale while on a field trip or public works employees conversing while tending to a city park's grounds….
[I]n their present state, they ask us to engage in an inquiry into sensitive and difficult First Amendment issues—concerning both privacy in public and government accountability—that is too likely to be a hypothetical one, given the disconnect between the organization's concrete allegations regarding its intentions and the breadth of the relief it seeks….
The court also rejected Project Veritas's overbreadth challenge, on the grounds that Project Veritas hadn't shown that "a substantial number of [the statute's] applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." I'm not sure that the court was right to so conclude (especially without reaching a legal conclusion about just how broad the statute's legitimate sweep is); but this post is long enough as it is, so I won't go into more detail on this.