The Project Veritas Action Fund, a conservative nonprofit known for releasing undercover videos, filed a federal lawsuit last Friday seeking to overturn aspects of the Massachusetts wiretapping law, which criminalizes secretly audio recording conversations.
Stephen Gordon, a spokesperson for Project Veritas, provided the following statement:
The ability to secretly record public officials in places with no expectation of privacy is protected at the very core of the First Amendment. Public officials rarely announce their own corruption, fraud or waste from a public podium – which is why secret recordings have traditionally been used by the media in these sorts of cases. Project Veritas Action Fund simply seeks the same First Amendment protection in Massachusetts we enjoy in other states without the present risk of being charged in criminal court for protected newsgathering efforts.
According to the lawsuit:
PVA would like to engage in undercover investigative journalism projects in Massachusetts. In particular, PVA would like to investigate the recently reported instances of landlords taking advantage of housing shortages in Boston where students may live in unsafe and dilapidated conditions. Likewise, PVA would like to investigate the trustworthiness and accountability of government officials, including police officers, in a variety of public and non-public settings.
The Massachusetts wiretapping law criminalizes the secret recording of both “wire” communications, such as telephone conversations, and “oral” communications. The Project Veritas lawsuit only seeks to overturn the criminalization of recording “oral” communications.
The lawsuit names Suffolk County District Attorney Daniel Conley as a defendant, noting that he is responsible for prosecuting violations of the wiretapping law in Boston, although it does not allege that Conley has threatened Project Veritas or filed charges against any of its employees. Jake Wark, press secretary for the district attorney’s office, declined to comment because Conley has not yet been served with the lawsuit.
According to Project Veritas’ website, its mission is to “[i]nvestigate and expose corruption, dishonesty, self-dealing, waste, fraud, and other misconduct in both public and private institutions in order to achieve a more ethical and transparent society.”
The group’s founder, James O’Keefe, is a controversial activist whose undercover recordings have sometimes landed him in hot water.
Prior to launching Project Veritas, O’Keefe gained notoriety for publishing a series of secretly-recorded videos that PINAC publisher Carlos Miller criticized in his book, The Citizen Journalist’s Photography Handbook:
In 2009, a pair of conservative activists named James O’Keefe and Hannah Giles teamed up to produce a series of undercover videos aimed at the Association of Community Organizations for Reform Now (ACORN), a non-profit organization that conducted voter registration drives in low-income neighborhoods. O’Keefe and Giles posed as a pimp and prostitute as they secretly recorded ACORN workers appearing to advise the couple on how to avoid paying taxes while hiding their illegal activity. The videos were aired on Fox News, causing several employees to lose their jobs as well as millions of dollars to be lost in funding, forcing the organization to file for bankruptcy.
But then investigations by attorney generals in several states determined the videos were heavily edited and had included false and misleading information. An ensuing investigation by the U.S. Government Accountability Office determined ACORN workers had not misused government funds or participated in criminal activity as purported in the videos. O’Keefe and Giles ended up paying $150,000 in a settlement to one of the fired workers whom they had secretly recorded because they had violated California’s eavesdropping law.
Similarly, Project Veritas was criticized by The Blaze for editing secret recordings of National Public Radio executives in a misleading manner.
O’Keefe and three associates also pleaded guilty to entering federal property under false pretenses, a misdemeanor, after posing as telephone repairmen to gain access to then-Democratic Senator Mary Landrieu’s office and secretly record conversations with her staff.
With that history, Project Veritas isn’t exactly the best group to challenge the wiretapping law, but the lawsuit still raises important issues.
There is a strong public interest in allowing members of the public to secretly record police officers, because police often use threats and even false arrests to stop people who openly record them, and have destroyed or attempted to destroy the recordings.
For instance, George Thompson, who recently passed away shortly after receiving a $72,500 settlement, was falsely arrested in 2014 for recording a Fall River police officer. After Thompson’s arrest, a police department employee who has yet to be publicly identified wiped the contents of his phone, including his video.
Also in 2014, five Amherst police officers pepper sprayed and arrested University of Massachusetts student Thomas Donovan for recording them. One of the officers attempted to destroy Donovan’s phone by stomping on it, but the video was left intact. Donovan is currently suing the police department.
Beyond police misconduct, there is an almost limitless amount of wrongdoing that can be uncovered with secret recordings: labor law violations by employers, bullying in schools, elder abuse in nursing homes and assisted living facilities, animal abuse on factory farms, and so on.
The preamble to the Massachusetts wiretapping law states the lawmakers passed it because “the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens.” It will be up the federal courts to decide if these privacy interests trump the First Amendment right to gather and disseminate information.
In the past, the state courts of Massachusetts have found that privacy takes priority. In 1998, a 28-year-old musician named Michael Hyde used a hidden tape recorder during a traffic stop in Abington. After Hyde brought his recording to the police station to file a complaint about how he was treated, he was charged, tried, and convicted of wiretapping and sentenced to probation.
Hyde appealed his conviction all the way up to the Massachusetts Supreme Judicial Court, the state’s highest court, on the basis that public officials have no right to privacy when carrying out their officials duties. However, the SJC rejected Hyde’s argument and upheld his conviction in a 2001 ruling.
Only now-retired Justice Margaret Marshall dissented, writing that she did not believe lawmakers “intended to allow police officers to conceal possible misconduct behind a cloak of privacy.”
A decade later, the federal First Circuit Court of Appeals ruled that recording police and other public officials is clearly protected by the First Amendment, rejecting a qualified immunity claim brought by the three Boston police officers who arrested Simon Glik for openly recording them on Boston Common. While that ruling set an important precedent, it did not overturn the wiretapping law and has left it ambiguous whether secretive recording is protected by the Constitution.
David Milton, a Boston civil rights lawyer who was part of Glik’s legal team, says he supports the goal of the Project Veritas lawsuit because it would better allow the public to hold police accountable.
Although Glik did not involve secret recording, nothing in the Court’s broad First Amendment ruling indicates that it is limited to open recording. The Court of Appeals found that filming government officials in public spaces serves the fundamental First Amendment purposes of exposing misconduct and promoting the free discussion of public affairs. Those interests do not depend on whether the recording is done overtly. In fact, secret recording may sometimes do a better job exposing police misconduct given police officers’ routine harassment of people who openly record them, which often includes seizing phones and deleting the footage.