Judge in Mass. says secretly recording officials, including police, is constitutionally protected

Voice recording devices.Michael Kirby Smith/The New York Times/file

A federal judge ruled Monday that secretly recording government officials, including police officers, who are performing their duties in public is protected by the First Amendment with “reasonable” caveats.

Ruling on a pair of challenges to Massachusetts’ wiretap statute, US District Court Judge Patti Saris held that state law “may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.”

In one of the cases, the American Civil Liberties Union of Massachusetts represented two Boston activists — K. Eric Martin and René Pérez — who were afraid to secretly record police due to a “credible fear of arrest and prosecution under the state’s wiretap statute,” the ACLU said.

The activists have often recorded police openly, but said that secret recordings “would both protect their safety and more accurately document police behavior,” the civil rights group said.

“This ruling reaffirms that the fundamental right to record police officers does not disappear when a recording device is covered,” said Carol Rose, executive director of the ACLU of Massachusetts.

The state’s wiretap law has made secret audio recordings of public interactions a crime, and “has been used to arrest and prosecute people for secretly recording police officers performing their duties in public,” according to the ACLU.

“We all suffer when fear of retribution or prosecution stifles conversations about police accountability,” Pérez said. “This ruling is a step towards greater police accountability and towards the safe, effective exercise of the right to record the police.”

The lawsuit was filed against Boston’s police commissioner, William Gross, and the former Suffolk County District Attorney, Daniel F. Conley.

A Boston police spokesman said Monday night the department would review the judge’s order before commenting on it. The state attorney general’s office, which represents district attorneys in federal lawsuits, is reviewing the decision, a spokeswoman said.

According to the decision, Conley asserted that the state’s wiretap statute “protects individuals’ privacy rights — specifically, the right of citizens and public officials alike to be on notice of when they are being recorded.”

Saris also ruled in favor of Project Veritas, a group founded by James O’Keefe, a conservative activist who has made headlines for releasing covert recordings meant to show media bias.

In a statement, O’Keefe said he welcomed the ruling.

“PVA v. Conley becomes the first case in United States history to hold that secretly recording government officials is protected by the First Amendment,” he said in a statement.

Last year, Project Veritas was caught trying to trick Washington Post reporters. In 2010, O’Keefe pleaded guilty to a misdemeanor charge of entering federal property under false pretenses in connection with an incident at an office of US Senator Mary Landrieu, a Louisiana Democrat.

The group would like to secretly record government officials in Massachusetts, according to court documents. The group is considering projects that would look into landlords renting unsafe apartments to college students, the positions of police, legislators, and immigration officials regarding so-called “sanctuary cities,” the management of Antifa protests, and Harvard University’s endowment and use of federal funds.

“PVA would like to send its journalists into Massachusetts to develop leads on these and other stories that may emerge,” according to court documents.

Correction: An earlier version of this story misstated the resolution of charges against James O’Keefe in 2010. O’Keefe pleaded guilty to a misdemeanor charge of entering federal property under false pretenses.