Appeals Court Grapples With Law Banning Secret Recordings

BOSTON (CN) — Though critical of a Massachusetts law that requires permission from government officials to record them, the First Circuit also showed uncertainty Wednesday about how to protect the rights of private individuals caught up in such recordings.

Completely overturning the law would leave the state “effectively naked” with no privacy-right protections, worried U.S. Circuit Judge David J. Barron.

This still from one of four viral videos released by Project Veritas ahead of the 2016 general election shows the introduction by conservative activist James O’Keefe. (Project Veritas via Courthouse News.)

An Obama appointee, Barron brought up the possibility of a member of the public secretly recording the report of a sex assault to a police officer.

The challenge to the Massachusetts law is led by Project Veritas, a conservative organization known for manipulating secret recordings to generate scandals involving Planned Parenthood, Acorn and other groups.

Benjamin T. Barr, special counsel for Project Veritas, told the Boston-based First Circuit on Wednesday that the law in Massachusetts is the most restrictive in the country. Some 38 sates have few if any limits on secret recordings and the rest have carefully tailored restrictions, he said.

Barr described the law as “absurd” and said the state was “lazy” in completely banning recordings without considering the First Amendment right to gather news about public officials.

Massachusetts is seeking a reversal after a federal judge ruled in December 2018  that the law was unconstitutional as applied to public employees in public spaces. That decision by Chief U.S. District Judge Patti Saris, a Clinton appointee, was the first in the country to find a First Amendment right to surreptitiously record government workers.

At Wednesday’s hearing, the judges seemed to have little difficulty agreeing that the law went too far. “One could easily hypothesize a large number of inappropriate applications,” said Barron flatly.

U.S. Circuit Judge Bruce M. Selya prodded Eric Haskell, the state’s assistant attorney general, meanwhile on his argument that completely overturning the law was too broad.

“But why isn’t [overturning the law] a sensible way to approach the problem?” asked Selya, a Reagan appointee. “I don’t see how you can expect a court to be more precise.”

Haskell said simply overturning the law would create unnecessary risks, such as if a police officer were recorded speaking with a confidential informant.

“What’s wrong with that?” Selya shot back. “Any police officer who meets with a confidential informant in public knows she’s running a risk.”

Rounding out the appellate panel was retired U.S. Supreme Court Justice David Souter, who emphasized that the confidential-informant question “is not before us.”

“Why don’t we just wait until there’s a case that raises that issue?” He asked.

Nevertheless, the judges prodded Barr as to whether they should limit their ruling in some way. Barron proposed limiting the scope to recordings in traditional public forums such as parks and sidewalks. Barr countered by suggesting that it might be okay to prohibit recordings that included private individuals who had a reasonable expectation of privacy.

“Is that what you want?” Barron asked.

Barr said that he wanted the court to completely overturn the law and let the Legislature “do the hard work” of rewriting it in a more narrowly tailored form.

The case was joined with one brought by two civil rights activists who want to be able to secretly record police. Their lawyer, Jessie J. Rossman of the ACLU of Massachusetts, suggested that the court could overturn the law but stay the effect of its decision to give the Legislature time to fix the constitutional problems.

The argument generated a lot of interest. The courtroom was so packed that the judges ordered the bailiff to shut the door and turn away additional spectators.

At one point, Barr tried to put the case in broad historical context. “Two hundred years ago, James Madison said that a public government without publicly available information is a prelude to a farce,” he intoned.

“So was Madison in favor or opposed to surreptitious electronic surveillance?” Selya quipped.

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