A journalist, or a citizen with a tape recorder, secretly records the conversation or debate involving an elected official or a police officer, in a public place.
In Rhode Island, it has been commonplace. But until recently, in Massachusetts it could’ve resulted in a criminal charge.
A U.S. District Court judge in December found the Massachusetts wiretap law that banned the secret recording of government officials performing their duties was unconstitutional. Rhode Island, for its part, has no similar wiretap law, according to legal and media officials.
The Bay State law, which dated to 1968, criminalized the secret recording of any oral communication through an “intercepting device,” according to a summary provided to clients by Prince Lobel Tye LLP, a Boston law firm that specializes in First Amendment and media law.
Until the recent order, journalists or citizens who wanted to surreptitiously record an elected official, or any government official, in a public forum could have faced prosecution.
“The wiretap statute is intended to protect privacy,” said Jeffrey Pyle, the Prince Lobel Tye attorney who argued the case, in a statement released by the firm. “This commonsense ruling affirms that government employees, who work for the public, do not have a privacy interest in what they do or say in public spaces.”
‘The wiretap statute is intended to protect privacy.’
JEFFREY PYLE, Prince Lobel Tye attorney
In her decision, Chief Justice Patti B. Saris found that Massachusetts law may not prohibit secret-audio recordings of government officials, including police, performing their duties in public spaces, subject to reasonable time and space restrictions.
Linda Lotridge Levin, professor emerita of journalism at the University of Rhode Island, said the Ocean State for years has had stronger protection of First Amendment rights than its neighbor.
Rhode Island also has single-party notification for recording of telephone communications, which requires the permission of just one of the parties. Massachusetts requires both parties, said Steven Brown, executive director of the American Civil Liberties Union of Rhode Island.
And the Ocean State for years has recognized the right to record elected officials in public meetings, he said.
“Our state open-meetings law has been specifically interpreted to mean that individuals have the right to record public meetings,” he said.
That interpretation came through a case in 1983 that involved the Warren School Committee and two teachers, one of whom tried to record the public proceedings. The committee considered adopting a policy that would allow them to object to, and stop, someone from recording the proceedings.
After the lawsuit was filed by the teachers, the committee attorneys argued that the minutes of the meeting should suffice as the official record, and that people speaking before the board might be intimidated if they knew they were being recorded.
In the order that followed, the U.S. District Court found the public had a constitutional right to record a meeting, and that doing so was a logical extension of the open-meetings law.
“While those in attendance may take notes of the discussions, or later refer to the official minutes, neither their notes nor the minutes will provide a complete record of the proceedings,” the order stated. “Moreover, many persons who have an interest in the committee’s doings may be unable to attend the meetings: a tape would provide them with an accurate and complete record of the proceedings.”
In Massachusetts, the wiretap case was brought by a nonprofit organization of undercover writers, called the Project Veritas Action Fund, and two Boston activists who were represented by the American Civil Liberties Union of Massachusetts.
The activists – K. Eric Martin and Rene Perez – had openly recorded police who were performing their duties in public at least 26 times, according to the lawsuit, and often live-streamed the results.
The activities included traffic and pedestrian stops of other people and one-on-one interactions. They filed a lawsuit challenging the state law for prohibiting the secret audio-recording of such conversations, according to a Prince Lobel summary.
Project Veritas, meanwhile, filed a lawsuit with a broader application – challenging the Massachusetts state law as violating the First Amendment by prohibiting the secret audio-recording of all government officials, including in private areas.
Writers who work for the organization create false identities, posing as interns or volunteers, for example, to gain access to officials or institutions, then use hidden microphones and cameras to capture conversations as part of newsgathering, according to the lawsuit.
The nonprofit had wanted to conduct investigations on subjects, including Harvard University and its endowment and use of federal funds, but it held back from doing so in Massachusetts because of the law against secret recording, according to the lawsuit.
Mary MacDonald is a staff writer for the PBN. Contact her at Macdonald@PBN.com.