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First Amendment scores a win in federal court

A US District Court judge narrowed considerably the scope of the Massachusetts’s wire tap law.MICHAEL KIRBY SMITH/NEW YORK TIMES/FILE

The First Amendment won a round in US District Court this week with a ruling that a 50-year-old Massachusetts law was never intended to apply to the recording of police or other government officials by activists or journalists.

The ruling narrows considerably the scope of a law passed long before the invention of cell phones and the window they can now provide on potential wrongdoing by public officials. Massachusetts’s wiretap law prohibits virtually any secret audio recordings, even in public settings. It is one of only 11 states with similar laws.

But a ruling issued Monday by US District Court Judge Patti Saris found, “On the core constitutional issue, the Court holds that 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.” And so, she added, the law “is unconstitutional in those circumstances.”

The court case paired two challenges to the law — one by two Boston activists fighting for the right to record police actions, even covertly, and a second filed against the Suffolk County district attorney’s office by Project Veritas, founded by conservative gadfly James O’Keefe. Project Veritas is noted for its video sting operations against welfare offices and, in one instance, its failed attempt to entrap some Washington Post reporters.


Yes, sometimes in First Amendment cases the “heroes” may come from the ranks of those who make mainstream journalists squeamish. That ought not, however, diminish the worth of the resulting victory.

The case, involving K. Eric Martin and René Pérez, both of whom engaged in numerous open recordings of police, told the court they had wanted to “secretly record police officers” in at least 19 instances since 2011 but have refrained from doing so.


While neither had ever been arrested for violating the wiretap law, they had some reason to be cautious. The judge noted that the Suffolk County DA’s office had opened 11 cases for violations of the law during that same period. Violation of the law is a felony. Boston Police had looked to charge nine people with secretly recording police in the performance of their duties.

“This is not to say that police and government officials have no privacy interests,” Saris wrote. “However, the diminished privacy interests of government officials performing their duties in public must be balanced by the First Amendment interest in newsgathering and information-dissemination.”

Project Veritas outlined its own specific agenda for possible secret recordings: “(1) landlords renting unsafe apartments to college students; (2) government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on ‘sanctuary cities’; (3) ‘protest management’ activities by both government officials and private individuals related to Antifa protests; and (4) interactions with Harvard University officials to research its endowment and use of federal funds.”

Okay, can’t say you government officials haven’t been warned. Private citizens — those landlords and folks from Harvard, for example — are still covered by the existing law.

The attorney general, who represented the DA’s office, is still reviewing the decision, according to a spokesperson. But this is one law whose time has come and gone. Challenges to the law go back to at least 2001, when a spirited dissent in a case then before the Supreme Judicial Court insisted that the “legislative intent” was to regulate government surveillance, not that of private citizens trying to monitor police conduct in a public place.


This case was clearly a win for greater transparency — and that’s all to the good. It should be allowed to stand.