On Monday, a federal judge in Massachusetts ruled unconstitutional a state law that had the effect of prohibiting all secret recordings of any encounter with a police officer or other government official. According to Chief Judge Patti B. Saris, of the US District Court for the District of Massachusetts, the Massachusetts law is not sufficiently “narrowly tailored to serve a significant government interest” to curtail the plaintiffs’ free speech rights under the First Amendment.
Two separate cases raised the same legal challenge to Mass. Gen. Laws ch. 272, § 99, which criminalizes the willful “interception” of any “communication,” as applied to the secret audio recording of government officials performing their official duties in public (one case challenged the prohibition on the recording of police officers specifically, while the other more broadly challenged the prohibition with respect to any government official).
After addressing several procedural issues, the district court held 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.” The court found that Section 99 fails intermediate scrutiny in that context and thus that it is unconstitutional in those circumstances.
Additional Reading
Judge in Mass. says secretly recording officials, including police, is constitutionally protected, Boston Globe, December 11, 2018
Martin et al. v. Evans et al., No. 1:2016cv11362
Project Veritas Action Fund v. Conley, No. 1:2016cv10462
Judge Saris’s memorandum granting the plaintiffs’ motions for summary judgment in both cases via Justia Dockets
Fifty-state Survey on Recording Calls and Conversations via Justia
