SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "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."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."

However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Plaintiff verdict upheld for IIED, hostile environment upon shocking attorney maltreatment of employee

The Massachusetts Appeals Court today upheld a verdict against a lawyer for shocking maltreatment of an employee.

mohamed_hassan (pixabay.com)

The employee, a Hispanic woman, was a clerical worker with responsibilities well into the paralegal vein.  She had worked in the attorney's office for about three years when she quit and sued for intentional infliction of emotional distress (IIED), hostile-work-environment sexual harassment, and constructive discharge.  Finding the defendant attorney liable, the jury awarded $20,000 on the IIED claim, $20,000 on the sexual harassment claim, and $150,000 in punitive damages.

Collaterally, plaintiff's husband was found liable in assault, for which defendant was awarded $1,000, and was held responsible for illegal wiretapping.

The Appeals Court affirmed plaintiff's verdict.  Application of law in the case was routine.  The court upheld the verdict as against defendant's erroneous assertions (1) that worker's compensation superseded IIED; (2) that the jury had doubled up on its calculation of damages; (3) that the jury was misinstructed on punitive damages; (4) that evidence of defendant's losses was improperly excluded; (5) that the evidence failed to support the jury's findings of causation and damages; and (6) that plaintiff evidence not produced in discovery was admitted at trial without sufficient remediation.

None of that is why I comment on the case here.  Rather, I want to republish the court's recitation of the facts, because they constitute a shocking portrait of a workplace that no person should have to endure for one day, much less three years.  Please keep in mind that the defendant here is a member of the bar.  And be warned that this text is not suitable for kids. 

Viewing the evidence with respect to the counts of the plaintiff's complaint for which the defendant was found liable, in the light most favorable to the plaintiff, the jury could have found as follows. The plaintiff was employed as a legal assistant at the law office of defendant, an attorney with a solo practice in Essex County. When she began working there in 2012, the plaintiff was the defendant's sole employee, but the defendant expanded his staff after hiring her.

The plaintiff's duties evolved over her years of working in the office, from answering the office telephones, handling the mail, and scheduling meetings, to working on interrogatories, doing legal research, and discussing client settlements. The plaintiff's desk was in the reception area of the office, across from the defendant's office. When the defendant was in the office, he worked directly with the plaintiff as her direct supervisor.

The plaintiff's complaint alleged, and the jury could have found, that over the course of several years the defendant made numerous comments and engaged in repeated behaviors that constituted tortious misconduct. This conduct occurred at the defendant's office, in the course of the plaintiff's employment. The defendant verbally attacked the plaintiff, calling her stupid and a moron. The plaintiff's coworkers testified that the defendant often belittled the plaintiff in the office, shouting uncontrollably at her and screaming in her face. When she tried to defend herself, he would yell at her to shut up and continue to scream at her. The defendant's screams could be heard even in offices on the floor above the defendant's office. When she was not present, and the defendant was angry with her, he would describe the plaintiff as a bitch, a slut, or a whore. He would also say she was crazy. There was a jar kept in the office into which the defendant would place money each time he called the plaintiff stupid.

Much of this misconduct related to the plaintiff's gender and race. The defendant told the plaintiff that men were intelligent while women were stupid; men were "superior" to women. He instructed the plaintiff to clean up after him in the office, including the mess left behind after his meals, because "that was women's work." The defendant also made comments about the plaintiff's and other female employees' appearances at work. He referred to one female employee as "Miss Dominican Republic." The defendant, at times without prior permission, photographed the plaintiff and her female coworker for the purpose of showing his friends "that I have nice girls here at the office." The plaintiff and another employee testified that the defendant would stand close behind the plaintiff while she was at her desk and look at her cleavage.  When she asked him to stop staring at her breasts, he responded that he could not help it and that she should wear other clothes to work. The plaintiff was also instructed to pick up condoms and lubricant for the defendant when she ran errands for him. The defendant would have the plaintiff go through his e-mails in the office, including pornographic advertisements; he once sent a pornographic e-mail to the plaintiff's daughter.

In explicit detail, the defendant would describe his sexual encounters to the plaintiff at the office.  The defendant described himself to the plaintiff as "always horny," asked her to comment on his girlfriend's breasts, and repeatedly described sex with his girlfriend to the plaintiff. He recounted a trip to the Dominican Republic in which he said his hotel room "came with [a] girl" and that "for $20 he got full service. Blow job and everything."  He described women in the Dominican Republic as "a bargain." He frequently bragged to the plaintiff of a trip to the Philippines in which he claimed he had sex with "cheap" young girls. When she asked him to stop, he ignored her or told her that she had to listen to this commentary because he paid her.

In speaking to the plaintiff, a Hispanic woman, the defendant made numerous racist remarks to her about African-American and Hispanic people. He would refer to his Hispanic clients as "drug dealers" and say that African-Americans were "stupid" and white people were superior. She testified that he used a number of racial slurs, referring to his Hispanic clients as "F-ing Spic[s]" and "calling [black] people n[word*]." When she asked him to stop making such comments, he disregarded her or told her to shut up and listen to him because he was her boss. The plaintiff testified that the defendant also made her sit with him and read his e-mails consisting of racist comments and "jokes" about black and Hispanic people. He often made fun of her accent and told her that her brown eyes were "dirty" compared to his "superior" blue eyes, which were "beautiful."

The plaintiff ultimately left the defendant's employ on October 22, 2015, after an incident with the defendant in the office. The defendant had been yelling at the plaintiff for failing to follow his instructions, and when she tried to explain what she had done, he repeatedly screamed at her to shut up. She informed the defendant that she was not feeling well and needed to go home, and the defendant told her, "Get the hell out of my office. Don't ever come back if you don't say sorry to me." The plaintiff left without the intention of returning, and her employment with the defendant ended.

....

After the plaintiff left the defendant's office, her husband went to the office himself to confront the defendant about his treatment of the plaintiff. After turning on his cell phone camera to record this encounter and placing the cell phone in his shirt pocket, the husband entered the office and moved toward the defendant, who was sitting at the front conference table talking on his cell phone. The husband sat down at the conference table near the defendant and told the defendant repeatedly to put his cell phone away.  The defendant and the plaintiff's husband began to argue at increasing volume about whether the defendant would put the cell phone away, and the husband told the defendant to listen to him. The defendant, feeling threatened, retreated to his office and closed the door, repeatedly telling the husband to leave. The husband opened the defendant's office door, and the defendant slammed it shut and called the police.

*All redactions in court opinion, except this one, which is mine.

These frightening facts embody the IIED rule of "utterly intolerable in a civilized society."  In our cancel culture, so replete with persons eager to be offended and to castigate their offenders with the force of law, we would be well advised to remember people who are truly and terribly victimized.  Watering down our civil rights law by giving eggshell plaintiffs ready access to administrative remedies, in disregard of the rights of respondents, is likely to result in over-corrective reforms that allow perpetrators of this despicable magnitude to escape accountability.

The case is Spagnuolo v. Holzberg, No. 19-P-778 (Mass. App. Ct. Oct. 21, 2020).  The opinion was authored by Justice Peter J. Rubin for a panel also comprising Justices Milkey and Massing.

Court's strike against Mass. wiretap law for recording police raises bigger questions of 'right to receive,' freedom of information

The "right to receive" expression or information is the long neglected, often doubted, and sometimes maligned sibling of the freedom of expression.  While the First Amendment posits the expression of information that one possesses, the right to receive posits the acquisition of information as an essential prerequisite.  In other words, without access to information, the freedom of expression is meaningless.

By Khairil Yusof (CC BY 2.0).

More broadly conceptualized, the right to receive is an umbrella that covers a great many propositions in civil rights discourse, especially the freedom of information or access to information (FOI or ATI), and including also the right to news-gathering and "citizen journalism"; the right of access to meetings, libraries, and public facilities such as prisons; and, most recently, the right to record police.  Historically, American constitutional law widely rejected propositions in this vein, evidenced by the famously statutory U.S. Freedom of Information Act, 5 U.S.C. § 552, which nonetheless has exerted substantial influence in the advent of ATI as a constitutional and human right elsewhere in the world.

Modern information society has raised new challenges to the American constitutional rejection of a right to receive information and prompted the reexamination of right-to-receive propositions in the courts.  A new appeal has arisen in the logic that access is prerequisite to meaningful democratic engagement through the freedoms to speak, publish, assemble, and petition.  A fair piece of this reexamination has appeared in the case law surrounding the video-recording of police activity, spurred in part by news-media focus on police-involved shootings and subsequent Black Lives Matter and related protests. 

Conventional First Amendment law would have subsumed video-recording under the doctrine of no right to gather the news, thus compelling would-be recorders to obey police orders to stop upon self-serving public-safety rationales, and on pain of civil and criminal justice consequences for failure to comply.  But as electronic media technology has dissolved the distance between recording and public broadcast—the latter unquestionably constitutionally protected by the speech-core prior restraint doctrine—even American courts have been reluctant to find recording devoid of constitutional significance.

In December 2018, the U.S. District Court for the District of Massachusetts held the Massachusetts wiretap statute, a "two-party consent" law (see code; Digital Media Law Project), unconstitutional--facially, though in the limited, articulated circumstances of "the secret recording of police officers performing their duties in public, and the secret recording of government officials doing the same." The court, per Chief Judge Patti B. Saris, held:

On the core constitutional issue, the Court holds 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. Because Section 99 [Mass. wiretap] fails intermediate scrutiny when applied to such conduct, it is unconstitutional in those circumstances.

James O'Keefe speaks at 2018 Student Action Summit, West Palm Beach,
Florida, Dec. 21, 2018. By Gage Skidmore (CC BY-SA 2.0).

The ruling came upon joint consideration of two cases involving different partisan affilliations.  In one case, Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, sued under civil rights law to combat authorities' investigation of them for openly and secretly recording police activity in pedestrian and traffic stops and at protests.  A second case involved the conservative activist James O'Keefe and his Project Veritas Action Fund (PVA).  PVA sought to effect secret recordings, and not to be criminally prosecuted for them, in Massachusetts in a broader and intriguing list of scenarios:

• "landlords renting unsafe apartments to college students;
• "government officials, including police officers, legislators, or members of the Massachusetts Office for Refugees and Immigrants, to ascertain their positions on 'sanctuary cities';
• "'protest management' activities by both government officials and private individuals related to Antifa protests; and 
• "interactions with Harvard University officials to research its endowment and use of federal funds."

As the court acknowledged, the First Circuit previously joined the majority trend in courts to recognize a constitutional right (subject to reasonable time-place-manner regulation) to record police in public.  Considering the extant threat of prosecution, the court found sufficient merit in plaintiffs' claims to survive ripeness review. 

C.J. Saris

The court then found that application of the law to recording public officials in their official capacity in public places could not survive First Amendment intermediate scrutiny: "narrowly tailored to serve a significant government interest."  Following the First Circuit's example, the court ruled that accountability outweighed slimmer competing interests in public order and officials' personal privacy.  The court left to future cases to determine whether the rule here may be extended to recordings in private venues that are places of public accommodation, such as a restaurant, and to determine who besides police are "government officials."

The case is Martin v. Gross, No. 1:16-cv-11362-PBS (D. Mass. Dec. 10, 2018), available here from Courthouse News Service.  Hat tip to Michael Lambert at Prince Lobel and Christine Corcos at Media Law Prof Blog.

As the courts continue to struggle with right-to-receive cases, rejection of the "right" in American constitutional law becomes increasingly untenable.  A generation of rehearings on the question in the U.S. Supreme Court, and a consequent reshaping of the relevant First Amendment doctrine, seems inevitable.