The state’s highest court on Monday affirmed a lower court ruling that tossed a 2019 lawsuit that Somerville Mayor Joe Curtatone filed against Barstool Sports, which had posted an embarrassing clip of the mayor talking by phone to a Barstool personality posing as a Globe columnist.
Monday’s 10-page Supreme Judicial Court ruling rejected Curtatone’s argument that he was secretly recorded during the phone call in violation of state law — even though Barstool host Kirk Minihane obtained his permission to tape their talk — since Minihane at the time falsely identified himself as Globe columnist Kevin Cullen.
Under state law, Justice Frank M. Gaziano wrote in the ruling, the person recording the call must make it clear that the conversation is being taped, which Minihane did; whether or not that person is truthfully identifying themselves is beside the point.
“Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded,” Gaziano wrote. “The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within the act.”
Curtatone said in a statement released by his lawyer that he accepts the SJC ruling.
He added that the “fundamental problem that caused me to bring this case in the first place persists: the public needs to be able to trust the media. If the media is able to misrepresent itself and obtain information fraudulently, it undermines our faith in a vital function of our society. More than ever the media is an important tool of our democracy and it must be protected from bad actors.”
Aaron Moss, lead attorney for Barstool, said in a separate statement that he and his clients are pleased the SJC agreed with their interpretation of the state’s Wiretap Act.
“If a recording isn’t secret, the question of consent is irrelevant,” said Moss, a partner at Greenberg Glusker. “And if government officials make comments for public dissemination, their privacy isn’t violated if those comments are recorded. By focusing on the plain language of the statute, the Court was able to avoid a result which would chill legitimate newsgathering long protected by the First Amendment.”
The video clip of Minihane speaking to Curtatone was uploaded to Barstool’s site in June 2019, amid a spat between Barstool founder David Portnoy and the Somerville mayor, who at the time had publicly criticized the company over what he suggested was its promotion of misogyny, racism, and right-wing “lunacy under a ‘sports’ heading,” according to legal filings.
Portnoy in turn had accused Curtatone’s family of criminal behavior, the ruling said.
Enter Minihane, who spoke to the mayor by phone purportedly as Cullen, after his earlier attempt to interview Curtatone, which the host made under his real name, was unsuccessful, legal filings show.
During the clip, Curtatone, thinking he’s talking to Cullen, says that “Barstool’s explicit mission is to target and market to white men. Barstool and its founder have been explicit in their language and actions in terms of being misogynistic...”
Minihane interjects, posing as Cullen and telling Curtatone, “I can’t find real examples of them being, like, racist. ... I see everyone saying they’re racist, they’re homophobic. They hire women all over the place.”
Minihane, who was named along with Barstool as a defendant in Curtatone’s suit, reacted to Monday’s ruling via Twitter.
“I knew I’d win and I did,” Minihane wrote. “You know why? I’ve been a fighter my whole life.”
Portnoy also tweeted about the ruling Monday with sharp words for Somerville’s mayor, who’s rumored to be a possible Democratic candidate for governor in 2022.
“How many times is this idiot @JoeCurtatone [going to] make an [expletive] out of himself?” Portnoy tweeted Monday. “Let’s not forget that when Kirk asked him why he hated Barstool so much he literally didn’t have any examples. Kirk made a fool of him so he sued. Classic politician.”
Gaziano wrote in Monday’s ruling that Curtatone had failed to state a claim under the law.
“Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an ‘interception’ within the meaning of the Commonwealth’s wiretap act,” Gaziano wrote. “The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.”