Ill-Gotten Is Not Illegal, Barstool Sports Says of Recording

Separate from this dispute between the mayor and the radio host who impersonated a reporter to land the interview, the First Circuit ruled only weeks earlier that recordings of public officials shouldn’t be suppressed.

The mayor of Somerville, Massachusetts, a suburb of Boston is Joe Curtatone. (Image via Courthouse News via Joe Curtatone campaign)

BOSTON (CN) — In a case pitting the mayor of a Boston suburb against Barstool Sports, the Massachusetts Supreme Court seemed unlikely Monday to seal up a recorded interview just because the interviewer faked his credentials.

The Bay State is one of several in the country that prohibits secret recordings, a law that Joe Curtatone, the mayor of Somerville, Mass., says made it illegal for a radio host who misrepresented himself as a Boston Globe reporter to record their conversation.

Curtatone had sounded off on Barstool Sports before he sat for the interview, saying the misogynist, racist style of news it offered made it an unfit partner for the Boston Bruins.

In response to the mayor calling Barstool Sports a “cult” and owner David Portnoy “toxic,” Portnoy labeled Curtatone a professional criminal.

“The thing about your family,” Portnoy tweeted in June 2019, “is they rape, extort, stab and arson. You and your fam can try to kill your enemies, but your constituents need to know you are attached to organized crime and should be in prison.”

One of Barstool’s radio hosts, Kirk Minihane, tried to interview Curtatone about the mayor’s claims that Barstool parties were racist and sexist but could not land the interview. So, instead, he pretended to be somebody else: Kevin Cullen of the Boston Globe.

During the June 2019 taped telephone interview, Minihane changed his voice and mimicked Cullen’s speech patterns. Minihane, as Cullen, asked the mayor for consent to record the interview, which he received.

Barstool Sports later posted the full recorded interview, and Minihane later bragged about the ruse. Curtatone sued, claiming the interview violated the Massachusetts Wiretapping Statute. 

Middlesex Superior Court Judge Maureen Hogan dismissed the suit last month, however, writing that the recordings do not constitute illegal wiretaps because the mayor agreed to them. “The question of whether Mayor Curtatone could meaningfully consent to the audio recording when he was unaware of Minihane’s true identity is thus irrelevant,” she wrote in the 5-page opinion.

Around that time, the First Circuit complicated the case further with its finding that the state violated the First Amendment by preventing secret, nonconsensual recordings of government officials.

Barstool Sports owner Dave Portnoy. (Zach Catanzareti Photo, creative commons, via Courthouse News)

Unrelated to the Barstool Sports brouhaha, the federal challenge has in one corner, political activists looking to record police officers and, in the other corner, the conservative group Project Veritas, which tried to record government officials discussing immigration policy and antifa protests. 

The First Circuit upheld a federal judge’s previous ruling, that the statute was overbroad in banning secret recordings of any state officials, which could range from governor to an elementary school teacher.

While it involved a far different set of facts, the shadow of the First Circuit ruling hung over the Curtatone-Minihane dispute.

Aaron Moss, an attorney representing Barstool, argued that the recording was not secret — regardless of any subterfuge — since the mayor thought he was talking to a reporter and understood it could be used for a story. 

“The news gathering function is just as important for the First Amendment as the publication and dissemination aspect of the first amendment,” Moss said, adding that ruling in favor of the mayor would raise myriad free speech issues.

Leonard Kesten, an attorney at Brody Hardoon who represents Curtatone, said he didn’t think the statute was unconstitutional, despite the recent First Circuit ruling. “That [ruling] fits our case perfectly in the negative,” he argued, noting that in this case the mayor was talking with a friend, or at least somebody he thought was his friend.

“He (Curtatone) was deliberately deceived,” Kesten said. “You can’t lie about who you are to get that conversation.”

That argument didn’t sit well with several of the judges.

“Secret means secret means secret,” said Judge Serge Georges Jr., noting that, even if Minihane lied about who he was, the mayor knew about and agreed to being recorded. “Doesn’t that change the definition of secret as it’s commonly understood?”

Further, Judge Scott Kafker worried there could still be First Amendment issues at large. “He is not speaking to his neighbor, he is speaking to a reporter for the Boston Globe,” Kafker said of the mayor. During oral arguments, judges and attorneys referenced the Minihane-Curtatone conversation as though it had truly been between Cullen and the mayor.

Kafker also questioned whether the mayor could sue some random onlooker at a public event who had held their phone in the air, recording his statements. “He doesn’t know who they are and who they may share it with,” Kafker posited in the hypothetical.

Once again, however, Kesten hung his hat on the fraud aspect of the case, countering that in the hypothetical scenario the mayor would have the choice whether to keep talking, whereas in his 3-minute interview with Minihane he was induced to keep talking.

The battle between Barstool Sports and Curtatone started due to allegations of sexism and racism by the sports media company and its owner.

Portnoy, who also goes by the moniker El Presidente, has a history of making rape jokes. In a 2010 blog post, he said that while he does not condone rape, “if you’re a size 6 and you’re wearing skinny jeans you kind of deserve to be raped, right?” Portnoy also said that it was a “gray area” whether an unconscious woman could be raped.

Both Portnoy and Barstool Sports have had run-ins with the law, as well, including various copyright issues and Portnoy being detained during Super Bowl LIII for creating fake press passes. 

The altercations with Curtatone also are not Portnoy’s first foray into scorched-earth tactics against a perceived foe. In 2018 blog posts, Portnoy called ESPN reporter Samantha Ponder “a vindictive asshole” and a scumbag, said her job requirement was to “make men hard,” and threatened to get the twitter hashtag #SamPonderLies trending.

Happy to maintain his bravado, Minihane has called attention to Monday’s oral arguments, calling it “the trial of the century” on social media. 

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