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 may be permissible in public schools 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.

 

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 the school setting, the Court's ruling would likely allow the secret audio and video recording of school officials making comments to the community at large, for example, at graduation, or before an athletic competition or theatrical performance. Secret recording of private interactions occurring during a meeting with staff or students, however, would not seem to be allowed. The closer question is whether students or staff would have the right to secretly record daily activities occurring in the school cafeteria, hallway or other common spaces within a school building. On this point, there does not appear to be any case of precedential value. Of course, schools do retain the right to restrict speech and related-activities when they would be reasonably likely to cause a substantial disruption or material interference with school activities.

 

In addition, school committee meetings and other open 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 in schools and administration buildings 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 the superintendent's office.

 

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