The United States Federal District Court in Boston recently issued a decision in a pair of consolidated cases holding that secretly recording government officials while performing their duties in public is protected by the First Amendment to the U.S. Constitution.

 

In Martin v. Gross and Project Veritas Action Fund v. Conley, the Court concluded further that because the Massachusetts wiretap statute, General Laws Chapter 272, Section 99, prohibits secret audio recordings, it is unconstitutional as applied in those circumstances. This decision raises questions, unanswered by the Court, as to when secret audio recordings of public officials may be permissible in other contexts on constitutional grounds.

 

The Court's decision relates to two separate claims. The first involved individuals who wished to secretly record police officers performing duties, such as traffic and pedestrian stops, arrests, and other interactions in public. The second involved a non-profit undercover journalism organization that wanted to secretly record government officials when they make statements in public places while performing official duties, such as statements about their positions on "sanctuary cities" and protest management activities, among other activities.

 

The Court, relying upon prior First Circuit Court precedent, concluded that audio and video recording of public officials, such as police officers, conducting their official duties in a public place is protected under the First Amendment, subject to reasonable time, place, and manner restrictions. With respect to the wiretap statute:

 

"The Court holds that Section 99 is not narrowly tailored to protect a significant government interest when applied to law enforcement officials discharging their duties in a public place...The same goes for other government officials performing their duties in public."

 

The Court provided little guidance as to what constitutes a "public place" or what would constitute a reasonable time, place, and manner restriction. The Court, in the context of a police officer speaking to an informant, indicated that a conversation away from bystanders or in a private setting would not constitute a public place. Further, citing prior case law, the Court recognized that discussions about national and local security do not take place in public. In this respect, the Court appears to have drawn a distinction between public property, e.g., an open space such as a park, street, or other location that is open to all, and other publicly-owned facilities that may not be accessible to the general public.

 

As applied to municipalities, the case states that members of the public may carry out secret audio recordings of officials when they work in a "public place." Municipal meetings would appear covered by this doctrine, although this may conflict with the Open Meeting Law, which provides that "[a]fter notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body... At the beginning of the meeting the chair shall inform other attendees of any recordings." In addition, the business counters at the Town Clerk's Office or Tax Collector's Office might qualify as areas where government officials work in a public place, but less clear are areas not readily accessible to the public such as a Mayor's office.

 

As First Amendment issues often turn on specific facts and circumstances, we strongly encourage you to contact a member of our Public and Municipal Law team with any questions.