Project Veritas Action Fund v. Rollins ( 2020 )

United States Court of Appeals
For the First Circuit
Nos. 19-1586, 19-1640
PROJECT VERITAS ACTION FUND,
Plaintiff, Appellee / Cross-Appellant,
v.
RACHAEL S. ROLLINS, in her official capacity as
District Attorney for Suffolk County,
Defendant, Appellant / Cross-Appellee.
No. 19-1629
K. ERIC MARTIN & RENÉ PÉREZ,
Plaintiffs, Appellees,
v.
RACHAEL S. ROLLINS, in her official capacity as
District Attorney for Suffolk County,
Defendant, Appellant,
WILLIAM G. GROSS, in his official capacity as
Police Commissioner for the City of Boston,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Eric A. Haskell, Assistant Attorney General of Massachusetts,
with whom Maura Healey, Attorney General of Massachusetts, was on
brief, for Appellant/Cross-Appellee Rachael S. Rollins.
Benjamin T. Barr, with whom Steve Klein and Statecraft PLLC
were on brief, for Appellee/Cross-Appellant Project Veritas.
Jessie J. Rossman, with whom Matthew R. Segal, American Civil
Liberties Union Foundation of Massachusetts, Inc., William D.
Dalsen, and Proskauer Rose LLP were on brief, for Appellees K.
Eric Martin and René Pérez.
Adam Schwartz and Sophia Cope on brief for Electronic Frontier
Foundation, amicus curiae.
Bruce D. Brown, Katie Townsend, Josh R. Moore, Shannon A.
Jankowski, Dan Krockmalnic, David Bralow, Kurt Wimmer, Covington
& Burling LLP, Joshua N. Pila, James Cregan, Tonda F. Rush, Mickey
H. Osterreicher, Robert A. Bertsche, Prince Lobel Tye LLP, David
McCraw, Elizabeth C. Koch, Ballard Spahr LLP, D. Victoria
Baranetsky, Bruce W. Sanford, Mark I. Bailen, and Baker & Hostetler
LLP on brief for The Reporters Committee for Freedom of the Press;
The American Society of Magazine Editors; Boston Globe Media
Partners, LLC; First Look Media Works, Inc.; The Media Institute;
Meredith Corporation; MPA - The Association of Magazine Media;
National Freedom of Information Coalition; National Newspaper
Association; National Press Photographers Association; New England
First Amendment Coalition; The New York Times Company; Politico,
LLC; Reveal from the Center for Investigative Reporting; Society
of Environmental Journalists; Society of Professional Journalists;
and Tully Center for Free Speech, amici curiae.
Oren N. Nimni and Lauren A. Sampson on brief for Lawyers for
Civil Rights, Center for Constitutional Rights, and LatinoJustice
PRLDEF, amici curiae.
Nicolas Y. Riley and Robert D. Friedman on brief for Institute
for Constitutional Advocacy and Protection, amicus curiae.
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
December 15, 2020
BARRON, Circuit Judge. Massachusetts, like other states
concerned about the threat to privacy that commercially available
electronic eavesdropping devices pose, makes it a crime to record
another person's words secretly and without consent. But, unlike
other concerned states, Massachusetts does not recognize any
exceptions based on whether that person has an expectation of
privacy in what is recorded. See Mass. Gen. Laws ch. 272, § 99("Section 99"). As a result, 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 categorical and
sweeping nature of Section 99 gives rise to the important questions
under the First Amendment to the United States Constitution that
the challenges that underlie the consolidated appeals before us
present.
The first appeal that we address stems from a 2016 suit
filed in the District of Massachusetts by two civil rights
activists in Boston -- K. Eric Martin and René Pérez ("the Martin
Plaintiffs"). They allege that Section 99 violates the First
Amendment insofar as it criminalizes the secret, nonconsensual
audio recording of police officers discharging their official
duties in public spaces. The other appeal that we address stems
- 4 -
from a suit filed in that same year in that same district -- and
eventually resolved by the same district court judge -- by Project
Veritas Action Fund ("Project Veritas"), which is a national media
organization dedicated to "undercover investigative journalism."
Project Veritas's suit targets Section 99 insofar as it
bans the secret, nonconsensual audio recording of any government
official discharging official duties in public spaces, as well as
insofar as it bans such recording of any person who does not have
a reasonable expectation of privacy in what is recorded. Project
Veritas also alleges that Section 99 must be struck down in its
entirety pursuant to the First Amendment doctrine of overbreadth.
We affirm the District Court's grant of summary judgment
to the Martin Plaintiffs, based on its ruling that Section 99
violates the First Amendment by prohibiting the secret,
nonconsensual audio recording of police officers discharging their
official duties in public spaces. We also affirm the District
Court's order dismissing Project Veritas's First Amendment
overbreadth challenge for failing to state a claim on which relief
may be granted. However, we vacate on ripeness grounds the
District Court's order dismissing with prejudice Project Veritas's
First Amendment challenge to Section 99 insofar as that statute
prohibits the secret, nonconsensual audio recording of individuals
who lack an expectation of privacy in what is recorded. For the
same reason, we vacate the District Court's grant of summary
- 5 -
judgment to Project Veritas on its claim that Section 99 violates
the First Amendment insofar as that statute bars the secret,
nonconsensual audio recording of government officials discharging
their duties in public. We remand the claims asserting these two
latter challenges to the District Court with instructions to
dismiss them without prejudice for lack of subject matter
jurisdiction.
I.
We begin by reviewing the background that led to the
enactment of Section 99, its key terms, and the way that the
Supreme Judicial Court of Massachusetts ("the SJC") construes
them. We then describe the travel of the two cases.
A.
In 1964, Massachusetts created a commission to study
whether to strengthen the Commonwealth's prohibitions on
electronic eavesdropping. The commission issued its final report
in June of 1968, which found "that eavesdropping devices are
readily available to members of the public from commercially
available stores" and that these devices make it quite easy for
even laypeople to use them "for purposes of illegally intercepting
wire or oral communications." Report of the Special Commission on
Electronic Eavesdropping, 1968 Mass. Sen. Doc. No. 1132, at 6
("1968 Commission Report"). The report recommended "that
wiretapping and eavesdropping other than by law enforcement
- 6 -
officers should be strictly prohibited," and it proposed the
adoption of an "'all-party consent' provision," "which would
require the consent of all parties to a conversation before that
conversation could be recorded or otherwise electronically
'intercepted.'" Id. at 9, 11.
A month later, the Massachusetts legislature enacted
Section 99, which states in its preamble "that the uncontrolled
development and unrestricted use of modern electronic surveillance
devices pose grave dangers to the privacy of all citizens of the
commonwealth." Mass. Gen. Laws ch. 272, § 99(A). The measure
goes on to make it a crime for "any person" to "willfully commit[]
an interception, attempt[] to commit an interception, or procure[]
any other person to commit an interception or to attempt to commit
an interception of any wire or oral communication." Id.§ 99(C)(1).
Section 99 defines a "wire communication" as "any
communication made in whole or in part through the use of
facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of origin
and the point of reception." Id. § 99(B)(1). An "oral
communication" is defined as "speech, except such speech as is
transmitted over the public air waves by radio or other similar
device." Id. § 99(B)(2). The term "interception" is defined as
follows: "to secretly hear, secretly record, or aid another to
- 7 -
secretly hear or secretly record the contents of any wire or oral
communication through the use of any intercepting device by any
person other than a person given prior authority by all parties to
such communication." Id. § 99(B)(4).
B.
Roughly a decade after Section 99's enactment, the SJC
construed the measure in Commonwealth v. Jackson, 349 N.E.2d 337(Mass. 1976), which concerned, among other things, whether audio
recordings of a kidnapper's ransom calls had been made in violation
of Section 99. Id. at 339. In holding that they had been, the
SJC agreed that even a recording of the audio of a person who had
no "reasonable expectation of privacy" in what was recorded could
fall under Section 99's prohibition. Id. at 340.
The SJC explained that if it "were to interpret
'secretly' as encompassing only those situations where an
individual has a reasonable expectation of privacy," it "would
render meaningless the Legislature's careful choice of words" in
Section 99. Id. The SJC concluded that a nonconsensual audio
recording is made "secretly" -- and thus in violation of Section
99 -- if the person recorded does not have "actual knowledge of
the recording." Id. The SJC added that actual knowledge of the
recording could be "proved where there are clear and unequivocal
objective manifestations of knowledge." Id.- 8 -
Some years later, in Commonwealth v. Hyde, 750 N.E.2d
963 (Mass. 2001), the SJC again held that Section 99 did not
impliedly exempt recordings of audio of persons who lacked an
expectation of privacy in what was recorded. Id. at 965-66. This
time, unlike in Jackson, the issue arose in connection with a
prosecution for a violation of Section 99 itself. In the case,
the criminal defendant had been charged with violating that statute
for having recorded the audio of his encounter with police --
without the officers' knowledge -- during a traffic stop. Id. at
964-65. The defendant moved to dismiss the criminal complaint
against him on the ground that Section 99 did not apply to
recordings of "police officers . . . performing official police
duties." Id. at 965. In such a situation, the defendant
contended, the officers "had no privacy expectations in their
words, and, as a result, their conversation should not be
considered 'oral communication' within the statute." Id.The SJC affirmed the denial of the defendant's motion by
explaining that "[t]he statute is carefully worded and
unambiguous, and lists no exception for a private individual who
secretly records the oral communications of public officials."
Id. at 966. For that reason, the SJC held, "the plain language of
the statute accurately states the Legislature's intent" and
nothing in that language "would protect, on the basis of privacy
rights, the recording that occurred here," regardless of "[t]he
- 9 -
value of obtaining probative evidence of occasional official
misconduct." Id. at 966-69.
The SJC emphasized that "[t]he commission clearly
designed the 1968 amendments to create a more restrictive
electronic surveillance statute than comparable statutes in other
States." Id. at 967. In fact, the SJC explained, to permit the
recording "on the ground that public officials are involved" would
necessarily permit the secret, nonconsensual recording "of
virtually every encounter or meeting between a person and a public
official, whether the meeting . . . is stressful . . . or
nonstressful (like a routine meeting between a parent and a teacher
in a public school to discuss a good student's progress)." Id. at
970. "The door once opened would be hard to close, and the result
would contravene the statute's broad purpose and the Legislature's
clear prohibition of all secret interceptions and recordings by
private citizens." Id.Hyde did note, however, that "[t]he problem . . . could
have been avoided if, at the outset of the traffic stop, the
defendant had simply informed the police of his intention to tape
record the encounter, or even held the tape recorder in plain
sight." Id. at 971 (emphasis added). In this way, Hyde clarified
Jackson's prior holding about what constituted "secretly"
recording under Section 99.
- 10 -
The dissenting opinion in Hyde asserted that neither
Section 99's text nor its legislative history indicated "that the
Legislature had in mind outlawing the secret tape recording of a
public exchange between a police officer and a citizen." Id. at
974 (Marshall, C.J., dissenting). To support this narrower
understanding of the measure, the dissent offered an example that
remains all too relevant today. It claimed that, under the
majority's ruling, George Holliday "would have been exposed to
criminal indictment rather than lauded for exposing an injustice,"
if his then-recent recording of Rodney King's beating at the hands
of police officers in Los Angeles, California had taken place in
Massachusetts. Id. at 972.
The majority responded that "[t]here is no basis to
ignore the plain language and legislative history" of Section 99,
"or our case law interpreting it, in favor of speculation as to
how an imaginary scenario might have played out, had the Rodney
King episode occurred in Massachusetts and not in California."
Id. at 971. The majority did assert, though, that "[a]lthough the
Rodney King videotape visually captured the conduct of the police
officers' [beating of] King, the recording was virtually
inaudible, until electronic enhancements filtered the audio
portion to allow the actual commands of the police officers to be
heard." Id. at 971 n.11.
- 11 -
C.
The appeals before us arise from two different suits
that challenge Section 99. But, while these suits ultimately
intersected below, it is useful to describe their travel
separately.
1.
On June 30, 2016, Martin and Pérez filed suit in the
United States District Court for the District of Massachusetts
against the Commissioner of the Boston Police Department ("BPD
Commissioner") and the District Attorney for Suffolk County
("District Attorney") in their official capacities. We will refer
to the BPD Commissioner and the District Attorney collectively as
"the Defendants."
The Martin Plaintiffs' complaint alleges that they are
civil rights activists who have regularly and openly recorded the
audio of police officers without their consent as they discharge
their official duties in public. Their complaint alleges that the
Martin Plaintiffs would like to undertake that same type of
recording secretly but fear doing so due to the criminal
prohibition that Section 99 imposes. The Martin Plaintiffs'
complaint alleges that others have been prosecuted by the District
Attorney for such recording and that the BPD's "official training
materials," including a "Training Bulletin" and "training video"
distributed to police cadets in 2010, "instruct officers that they
- 12 -
may arrest and seek charges against private individuals who
secretly record police officers performing their duties in
public."
Based on these allegations, the complaint claims that
Section 99 "as applied to secretly recording police officers
engaged in their official duties in public places, violates the
First Amendment by causing Plaintiffs to refrain from
constitutionally protected information gathering" and from
"encouraging, or aiding other individuals to secretly record
police conduct in public." The complaint requests "declaratory
and injunctive relief under 42 U.S.C. § 1983 and the First and
Fourteenth Amendments to the United States Constitution" on the
ground that Section 99 is unconstitutional when "applied to
prohibit the secret audio recording of police officers performing
their duties in public."
On September 30, 2016, the Defendants filed motions to
dismiss for lack of jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). In March of 2017, the District
Court denied both motions. Martin v. Evans, 241 F. Supp. 3d 276,
288 (D. Mass. 2017). Discovery proceeded for roughly a year before
the parties filed dueling motions for summary judgment. The
District Court granted summary judgment to the Martin Plaintiffs
- 13 -
on December 10, 2018. Martin v. Gross, 340 F. Supp. 3d 87, 109
(D. Mass. 2018).
The District Court first rejected the Defendants'
contention that the Martin Plaintiffs' First Amendment claim was
not ripe for essentially the reasons set forth in its earlier
ruling rejecting the Defendants' 12(b)(1) motion. Id. at 103.
But, the District Court added, discovery reinforced the basis for
that earlier ruling, as the plaintiffs had "attested to their prior
recordings of police officers" and "aver[red] that they desire to
secretly record police officers but have refrained from doing so
because of" Section 99, and "the defendants have sought criminal
complaints or charged persons for violating [the statute] numerous
times since 2011." Id. The District Court also noted that "the
government has not disavowed enforcement of" the statute. Id.Accordingly, the District Court determined that the "facts give
rise to a live controversy over genuine First Amendment injuries."
Id.As to the merits, the District Court first addressed
whether the Martin Plaintiffs were bringing a "facial" or "as
applied" attack on Section 99. The District Court explained that
the Martin Plaintiffs' challenge targets only a slice of what
Section 99 bans, and so in that sense was "as applied." Id. at
105. But, the District Court noted, the Martin Plaintiffs sought
relief that would "block the application of Section 99 to any
- 14 -
situation involving the secret recording of police officers . . .
performing their duties in public, not just in a specific instance
of the plaintiffs engaging in such conduct." Id. In that respect,
the District Court concluded, the Martin Plaintiffs' challenge was
facial in nature, notwithstanding that their challenge did not
seek to invalidate Section 99 in its entirety. Id.The District Court also explained that the Martin
Plaintiffs' planned recording warranted at least some First
Amendment protection, just as it had held in denying the
Defendants' motion to dismiss. Id. at 96-98; see Martin, 241 F.
Supp. 3d at 287-88. There, the District Court explained that it
disagreed with the Defendants' contention that "the First
Amendment does not provide any right to secretly record police
officers," as it ruled that "[e]xisting First Circuit authority"
-- namely Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), and
Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014) -- "holds otherwise."
Martin, 241 F. Supp. 3d at 286.
The District Court then trained its attention on the
level of First Amendment scrutiny that applied to Section 99's ban
on the recording at issue. Martin, 340 F. Supp. 3d at 105. The
District Court concluded that Section 99 was a content-neutral
restriction on the time, place, or manner of the Martin Plaintiffs'
planned speech-related activity and that, in consequence, the
measure's prohibition was not subject to strict scrutiny. Id.
- 15 -
The District Court went on to subject the ban at issue to
"intermediate scrutiny," noting that although the Defendants had
suggested that an even less demanding level of scrutiny "might"
apply, they had not developed an argument as to why that would be
the case. Id. at 105-06. In addition, the District Court
explained that our prior precedent did not support the application
of less than intermediate scrutiny. Id. at 106 (first citing Glik,
655 F.3d at 82-84, then citing Jean v. Mass. State Police, 492
F.3d 24, 29 (1st Cir. 2007)).
Finally, the District Court evaluated Section 99's ban
on such recording under intermediate scrutiny and determined that
-- on its face -- it could not survive review due to its sweep.
Id. at 106-08. Despite recognizing that, "[i]n this context,
narrow tailoring does not require that the law be the least
restrictive or least intrusive means of serving the government's
interests," the District Court explained that the ban "is not
narrowly tailored to protect a significant government interest
when applied to law enforcement officials discharging their duties
in a public place." Id. at 106-07. The District Court noted that
Section 99 prohibits such recording even in circumstances in which
police officers would have no expectation of privacy in what is
recorded. Id. at 108. The District Court added that, given its
analysis to that point, it "need[] not decide whether [the statute]
leaves open adequate alternative channels for" the speech-related
- 16 -
activity at issue. Id. (quoting Am. C.L. Union of Ill. v. Alvarez,
679 F.3d 583, 607 (7th Cir. 2012)).
2.
Project Veritas brought a similar though more expansive
First Amendment challenge to Section 99 on March 4, 2016 in the
same federal district as the Martin Plaintiffs. The two suits
ultimately ended up before the same judge. Martin, 340 F. Supp.
3d at 92-93. Like the Martin Plaintiffs, Project Veritas brought
suit under 42 U.S.C. § 1983. Project Veritas Action Fund v.
Conley, 244 F. Supp. 3d 256, 259 (D. Mass. 2017).
The Defendants moved to dismiss Project Veritas's
complaint for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) and for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). The District Court
determined that it had jurisdiction under Article III of the United
States Constitution over Project Veritas's challenge to the
statute's prohibition on the secret recording of individuals who
lack a reasonable expectation of privacy and as to its challenge
to the statute in its entirety. Id. at 262. However, the District
Court concluded that Project Veritas's allegations that it wanted
to use secret recording to investigate government officials were
"too vague" to render ripe its pre-enforcement challenge to Section
99 insofar as it banned the secret, nonconsensual audio recording
of any such officials in public spaces, though it left Project
- 17 -
Veritas the opportunity "to replead[] more specific allegations."
Id.With that latter challenge to Section 99 out of the way
for the time being, the District Court took up the merits of
Project Veritas's claim that Section 99 violated the First
Amendment both "as-applied," insofar as the measure prohibited the
secret recording of private individuals who lacked an expectation
of privacy (though, apparently, even as to circumstances not
involving Project Veritas's own recording), and facially under the
First Amendment overbreadth doctrine as to the statute as a whole.
Id. at 262-66. The District Court rejected both contentions. Id.
at 265-66.
With respect to what the District Court characterized as
Project Veritas's "as-applied" challenge -- which concerned
Section 99's ban on the secret, nonconsensual audio recording of
any person lacking a reasonable expectation of privacy in what was
recorded but not Section 99 as a whole -- it applied intermediate
scrutiny. Id. at 262-63. It then rejected this challenge on the
merits, because it concluded that Section 99's ban on such
recording "is narrowly tailored to serve the purpose of protecting
privacy by permitting only non-secret recordings of private
conversations," even though the statute banned secret recordings
in circumstances where the private speaker might not have a
reasonable expectation of privacy. Id. at 265; see also id.- 18 -
("While the reasonable expectation of privacy standard for
defining oral communications might be the least restrictive
alternative, that approach is not required under intermediate
scrutiny when the privacy of individual conversations is at
stake.").
There remained at that point only what the District Court
characterized as Project Veritas's facial challenge to Section 99,
which sought to invalidate the statute in its entirety under the
First Amendment overbreadth doctrine. In addressing this
challenge, the District Court observed that, under that doctrine,
a plaintiff may bring a facial challenge to a statute -- under the
First Amendment -- even "though its application in the case under
consideration may be constitutionally unobjectionable." Id.(quoting Forsyth County v. Nationalist Movement, 505 U.S. 123, 129
(1992)). The District Court went on to hold, however, that Project
Veritas's First Amendment overbreadth challenge failed because
"[m]ost applications of Section 99 are constitutional," as
"Section 99 constitutionally protects private conversations in all
settings and conversations with government officials in nonpublic
settings or about non-official matters." Id. at 266.
In the wake of the District Court's rulings, Project
Veritas then filed an amended complaint on April 7, 2017.
Following some further back and forth, it next filed a second
amended complaint on September 29, 2017. In that complaint,
- 19 -
Project Veritas asserted that, but for Section 99, it would use or
would have used secret recordings to:
 "investigate instances of landlords taking advantage
of housing shortages in Boston where students may live
in unsafe and dilapidated conditions, as well as the
ties between these landlords and public officials";
 "investigate and report on the public controversy over
'sanctuary cities' in Massachusetts . . . by secretly
investigating and recording interactions with
government officials in Boston in the discharge of
their duties in public places, including police
officers, to learn more about their concerns about
immigration policy and deportation"; and
 "investigate and record government officials who are
discharging their duties at or around the State House
in Boston and other public spaces to learn about their
motives and concerns about immigration policy and
deportation."
Project Veritas further alleged that, but for Section
99, its "journalists would have attended" "a large public
event . . . in downtown Boston" on August 19, 2017, that involved
"[i]ndividuals and organizations from other states tied to the
ongoing PVA 'antifa' investigation," where they would have
"secretly recorded public officials executing their duties as they
- 20 -
related to attendees." At similar events in the future, the
complaint added, Project Veritas planned to "employ cellular phone
cameras and 'button cameras'" in order to "capture whether antifa
public events and protests are peaceful, whether police or other
public officials' interactions with antifa members are
non-violent, and otherwise capture the events to report to the
public."1
By the summer of 2018, discovery had been conducted and
Project Veritas, like the Martin Plaintiffs in their case, had
filed a motion for summary judgment. On December 10, 2018, in the
same opinion in which the District Court granted summary judgment
to the Martin Plaintiffs, the District Court granted Project
Veritas's motion for summary judgment in part. See Martin, 340 F.
Supp. 3d at 109.
The District Court concluded that Project Veritas had
standing to challenge Section 99's bar to the secret, nonconsensual
audio recording of any government official discharging official
duties in public spaces. Id. at 104. The District Court also
1
Project Veritas's second amended complaint also
requested that the District Court hold that the statute was
constitutionally infirm insofar as it prohibited the secret,
nonconsensual recording of oral communications made by any person
speaking without a reasonable expectation of privacy. It did not
make this request in its motion for summary judgment, however,
partially "in recognition of the fact that the [District] Court
ha[d] already dismissed [its] claims insofar as they pertain[ed]
to private individuals." Martin, 340 F. Supp. 3d at 104 & n.5.
- 21 -
noted that "[t]he breadth of potential conduct" that Project
Veritas claimed it wanted to undertake in Massachusetts, "none of
which has actually occurred, creates serious ripeness concerns."
Id. But, the District Court concluded that it "need[ed] no
additional facts to resolve" the legal dispute over Project
Veritas's challenge to the statute's application to the secret,
nonconsensual audio recording of government officials performing
their duties in public places and thus that the claim was ripe.
Id. at 103.
Then, for largely the same reasons that led the District
Court to grant summary judgment to the Martin Plaintiffs on their
narrower-gauged First Amendment challenge to Section 99, it ruled
that Project Veritas's challenge to the statute -- insofar as it
applied to ban the secret, nonconsensual audio recording of any
government officials discharging their duties in public -- was
meritorious. Just like a ban on secretly recording the audio of
police officers without their consent while they are carrying out
their official duties in public places, the District Court
determined, a ban on such recording of government officials more
generally was subject to intermediate scrutiny and was not
"narrowly tailored to serve a significant government interest."
Id. at 106-07 (quoting Rideout v. Gardner, 838 F.3d 65, 72 (1st
Cir. 2016)). The District Court explained that this was so because
the statute's total ban on such recording went far beyond merely
- 22 -
protecting the "diminished privacy interests of government
officials performing their duties in public." Id. at 107.
3.
Following the District Court's summary judgment rulings
in favor of the Martin Plaintiffs and Project Veritas, the parties
participated in briefing regarding the injunction that the
District Court would order. But, on May 22, 2019, the District
Court announced that it would not issue an injunction and that
instead it would issue a declaratory judgment to the effect that
Section 99 violated the First Amendment insofar as it barred the
secret recording "of government officials, including law
enforcement officers, performing their duties in public spaces."
Martin v. Gross, 380 F. Supp. 3d 169, 173 (D. Mass. 2019).
The Defendants had requested that the District Court
narrow or specify the meaning of "government officials" and "public
space." Id. at 172. They also had asked the District Court to
alter its ruling so that Section 99 could "still [be] enforceable
where a surreptitious audio recording captures the oral
communications of both a government official and a non-government
official (i.e., a civilian)." Id. at 173 (emphasis omitted). But,
the District Court declined to "reconsider" its approach at that
"late stage in the proceedings." Id.The District Court explained, however, that it gave the
terms "public space" and "government official" the same meaning
- 23 -
that it understood them to have in Glik, which addressed whether
an individual had a First Amendment right to openly record the
audio of police officers -- without their consent -- performing
their duties in public. Martin, 380 F. Supp. 3d at 172-73
(discussing Glik, 655 F.3d at 82-85). In addition, the District
Court noted that in Glik, this Court found that the plaintiff had
a First Amendment right to record police officers discharging their
duties in public without their consent, notwithstanding the fact
that the plaintiff captured a private citizen -- namely, the
individual the officers were arresting -- in the process. Id. at
173. The District Court consequently declined to narrow its
declaratory judgment on that front, too. Id.
4.
The District Attorney filed timely notices of appeal in
both cases. The BPD Commissioner did not appeal. Project Veritas
filed its own timely notice of appeal from the District Court's
decision dismissing its claims that challenged Section 99, both in
its entirety under the First Amendment overbreadth doctrine and
insofar as it banned the secret, nonconsensual recording of any
oral communication made by any person without a reasonable
expectation of privacy.
II.
We begin with the District Attorney's appeal from the
District Court's grant of summary judgment to the Martin
- 24 -
Plaintiffs. The District Attorney contends that the District Court
erred in its treatment of both jurisdiction and the merits. We
review the District Court's ruling granting summary judgment to
the Martin Plaintiffs de novo in determining "if the record, viewed
in the light most favorable to the nonmoving party" evinces "no
genuine issue of material fact," such that "the moving party is
entitled to a judgment as a matter of law." Zabala-De Jesus v.
Sanofi-Aventis P.R., Inc., 959 F.3d 423, 427-28 (1st Cir. 2020)
(quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.
2006)).
A.
The District Attorney's jurisdictional objection
concerns ripeness. The ripeness inquiry is grounded in
Article III's "prohibition against advisory opinions." Sindicato
Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 8 (1st Cir.
2012) (quoting Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir.
2003)). The requirement's "basic rationale is to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements." Id. (quoting
Abbott Lab'ys v. Gardner, 387 U.S. 136, 148 (1967)).
We have long used a "two-part test," derived from the
Supreme Court's decision in Abbott Laboratories, to determine if
a claim is ripe:
- 25 -
First, the court must consider whether the
issue presented is fit for review. This
branch of the test typically involves
subsidiary queries concerning finality,
definiteness, and the extent to which
resolution of the challenge depends upon facts
that may not yet be sufficiently developed.
The second branch of the Abbott Labs test
requires the court to consider the extent to
which hardship looms -- an inquiry that
typically "turns upon whether the challenged
action creates a 'direct and immediate'
dilemma for the parties."
Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535
(1st Cir. 1995) (citation omitted) (quoting W.R. Grace & Co. v.
EPA, 959 F.2d 360, 364 (1st Cir. 1992)).
"[W]hen free speech is at issue," however, "concerns
over chilling effect call for a relaxation of ripeness
requirements." Sullivan v. City of Augusta, 511 F.3d 16, 31 (1st
Cir. 2007). For that reason, "[a] party need not marshal all its
resources and march to the line of illegality to challenge a
statute on First Amendment grounds." Sindicato Puertorriqueño de
Trabajadores, 699 F.3d at 9. Still, "[t]o establish ripeness in
a pre-enforcement context, a party must have concrete plans to
engage immediately (or nearly so) in an arguably proscribed
activity. This gives a precise shape to disobedience, posing a
specific legal question fit for judicial review." R.I. Ass'n of
Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999).
To frame the ripeness inquiry here, it helps to describe
the Martin Plaintiffs' challenge more precisely with respect to
- 26 -
where it falls along the facial/as-applied spectrum. With their
challenge so described, we then explain why we conclude that they
have met their burden to satisfy both the fitness and hardship
prongs under the ripeness inquiry.
1.
Whether a challenge is facial or as-applied can bear on
whether it is ripe, see Kines v. Day, 754 F.2d 28, 30-31 (1st Cir.
1985), and so it is useful to address at the outset of our
jurisdictional analysis the parties' dispute over the proper way
to characterize the Martin Plaintiffs' First Amendment challenge.
The dispute arises because the Martin Plaintiffs contend that they
are bringing only "an as-applied claim," while the District
Attorney contends that they are making a "facial" attack on Section
99.
This battle over labels is not fruitful. The Martin
Plaintiffs' challenge takes aim at only a portion of Section 99,
but it seeks to block it in circumstances beyond the Martin
Plaintiffs' own recording. The challenge thus has both "as-
applied" and "facial" characteristics. There is no obvious sense
in which one predominates.
Fortunately, the Supreme Court has confronted similar
half-fish, half-fowl First Amendment challenges and instructed
that where the challengers "do[] not seek to strike [a statute] in
all its applications" but the relief sought "reach[es] beyond the
- 27 -
particular circumstances of [the] plaintiffs," they must "satisfy
[the] standards for a facial challenge to the extent of that
reach." John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (emphasis
added); see also Showtime Ent., LLC v. Town of Mendon, 769 F.3d
61, 70 (1st Cir. 2014). We thus proceed on the understanding that
the Martin Plaintiffs seek the invalidation -- facially -- of
Section 99 but only insofar as it applies to bar the secret,
nonconsensual audio recording of police officers discharging their
official duties in public spaces.
We emphasize, though, that the Martin Plaintiffs contend
that Section 99 is unconstitutional as applied to their own
recording. In that respect, they are not bringing a First
Amendment overbreadth challenge. Nor are they seeking, however,
to invalidate the measure only insofar as it applies to their own
conduct. They are bringing a challenge to a portion of Section 99
that they contend cannot be applied to bar such recording, whether
undertaken by them or by anyone else, because it is not tailored
in the way that they contend the First Amendment requires.
With the Martin Plaintiffs' challenge now better in
view, we are well positioned to explain why we conclude that it is
ripe. We begin with the question whether it is fit for
adjudication in federal court. We then address whether the
hardship prong of the ripeness inquiry has been met. In doing so,
we are mindful of the Supreme Court's observation in Susan B.
- 28 -
Anthony List v. Driehaus, 573 U.S. 149 (2014), that the notion
that certain ripeness considerations are more prudential than
constitutional "is in some tension" with the Court's admonition
that "'a federal court's obligation to hear and decide' cases
within its jurisdiction 'is virtually unflagging.'" Id. at 167(quoting Lexmark Int'l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 125-26 (2014)). But, because, as there, "the
'fitness' and 'hardship' factors are easily satisfied here," id.,we conclude the claim is ripe for our adjudication.
2.
Starting with fitness, we discern no problematic
uncertainty as to the category of public officials whom the
plaintiffs wish to record. Nor does the District Attorney suggest
that the group of public officials encompassed by the phrase
"police officers" is defined in terms that are too uncertain to
permit federal court review.
The District Attorney does argue that there is a
problematic degree of uncertainty as to the locations in which the
recording of police officers would occur, which the Martin
Plaintiffs identify as "public spaces." But, we do not agree.
The Seventh Circuit in American Civil Liberties Union of
Illinois v. Alvarez held that a pre-enforcement First Amendment
challenge to a ban on the audio recording of police officers
discharging their duties in such places was justiciable. 679 F.3d
- 29 -
at 594. Yet, the plaintiffs' recording plan there was not
materially more detailed in describing the locations in which the
recording would occur. See id. at 593-94.
Indeed, the concern that "public spaces" is too
amorphous a category is mitigated here by the fact that we used
that same phrase in Glik and Gericke to describe the geographical
bounds of the citizen's right to record police officers that we
recognized there. Glik, 655 F.3d at 84-85; Gericke, 753 F.3d at
8. Our cases have fleshed out the contours of that category by
specifying that it includes traditional public fora, such as public
parks like the Boston Common (which was the site of the recording
in Glik, 655 F.3d at 84); the sites of traffic stops, including
those that occur on the sides of roads, see Gericke, 753 F.3d at
8 (recognizing the attempted recording of a traffic stop conducted
on a highway as falling within the First Amendment right to record
law enforcement discharging their duties in "public spaces"); and
other "inescapably" public spaces, id. at 7, such as the location
of the recording that occurred in Iacobucci v. Boulter, 193 F.3d
14 (1st Cir. 1999), which concerned a journalist's arrest for
openly recording members "of the Pembroke Historic District
Commission" that were having a conversation in "the hallway" of
the town hall immediately following an open public meeting, id. at
17-18.
- 30 -
Adding still further definition to the geographic scope
of the recording plan is the fact that -- despite the District
Attorney's contention to the contrary, see District Att'y's Br. at
39 -- we, like the District Court, see Martin, 380 F. Supp. 3d at
172-73, understand the Martin Plaintiffs to be using the phrase
"public spaces" as Glik and Gericke did, and neither case,
explicitly or implicitly, held that publicly accessible private
property fell within the scope of "public spaces" for purposes of
the right to record.
Finally, we discern no problematic uncertainty as to the
nature of the police activities that the Martin Plaintiffs'
challenge targets. Because the record suffices to show that the
recording for which protection is sought is of police officers
only in "public spaces," the range of police conduct at issue here
is no mystery, just as it was not in Alvarez, given that the
conduct consists only of the discharge of official functions. See
679 F.3d at 593-94.
The Martin Plaintiffs do seek protection for "secretly"
rather than openly recording, however, and that does make their
challenge different from the one involved in Alvarez. See id. at
607. But, that feature of their challenge does not create
uncertainty as to whether Section 99 creates a risk that the Martin
Plaintiffs would be prosecuted for engaging in such recording.
- 31 -
As we have explained, the SJC has construed Section 99
to encompass recording not conducted in "plain sight" of the person
recorded, so long as that person has no actual knowledge it is
occurring. See Hyde, 750 N.E.2d at 971. So, insofar as the record
suffices to show that Section 99 is enforced, there is nothing
about the nature of the recording of the kind in which the Martin
Plaintiffs plan to engage that, legally, insulates it from such
enforcement.
Nor does the fact that the recording will be carried out
secretly make the range of police activities that, in principle,
is subject to the recording different from the range of such
activities that was at issue in Alvarez. Those activities -- as
described by the Martin Plaintiffs -- are only ones that officers
engage in while carrying out their official duties and then only
while they are doing so in public spaces.
The District Attorney counters that precisely because
the recording at issue will be conducted secretly, there is a
"discrepancy . . . between the facts needed to adjudicate [the
Martin Plaintiffs'] claim[] and the facts actually presented by
[them]." As she sees it, courts have previously recognized "a
right to openly record" police discharging official duties in
public places but only in cases with well-developed factual records
and, save for Alvarez, only ex post.
- 32 -
The District Attorney contends that a determination as
to whether "a right to surreptitiously record" warrants the same
protection as a right to record openly "is even more likely to
depend on the factual circumstances surrounding the recording," in
terms of where it occurs, whose audio is recorded, and how the
fact of the recording is concealed. She asserts in this regard
that the Martin Plaintiffs have "failed to present the kind of
concrete facts about any prospective surreptitious recording
[they] plan[] to make" that would make it possible for "a court to
adjudicate their novel claims without resort to speculation,
abstraction, and hypothetical facts." That the Martin Plaintiffs
acknowledge that they may end up capturing the audio of private
persons who interact with the police officers whom they record,
the District Attorney suggests, exacerbates the concern.
It is true that, "[e]ven though a challenged statute is
sure to work the injury alleged," there may be cases in which
"adjudication might be postponed until 'a better factual record
might be available.'" Babbitt v. United Farm Workers Nat'l Union,
442 U.S. 289, 300 (1979) (quoting Reg'l Rail Reorganization Act
Cases, 419 U.S. 102, 143 (1974)). But, this case is not one of
them.
We do not need a more fully developed record to assess
the merits of the Martin Plaintiffs' purely legal assertion that,
under our decisions in Glik and Gericke, a criminal statute can
- 33 -
constitutionally bar their planned First Amendment activity only
if that activity would interfere with police officers performing
their public duties or could be supported by a legitimate interest.
Nor do we need additional factual development to be able to assess
the purely legal question that concerns the level of scrutiny that
applies to a ban on recording of this kind. See Susan B. Anthony
List, 573 U.S. at 167 (finding that the challenge was ripe where
it "present[ed] an issue that [was] 'purely legal, and [would] not
be clarified by further factual development'" (quoting Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985)));
Whitehouse, 199 F.3d at 34 (concluding that the claim was ripe
because it presented a "single, purely legal question"); see also
Commodity Trend Serv. v. Commodity Futures Trading Comm'n, 149
F.3d 679, 687 n.3 (7th Cir. 1998) ("[A] facial constitutional
challenge presents only a legal issue -- the quintessentially 'fit'
issue for present judicial resolution . . . .").
There also is no need for additional factual development
for us to be able to assess the merits of the Martin Plaintiffs'
assertion that the categorical prohibition that Section 99 places
on the recording for which they seek protection is, on its face,
too uncalibrated to survive such First Amendment review. We may
assess that contention on this record, taking due account of both
the fact that third parties may be recorded and that secret
recording can take many forms. For while those features bear on
- 34 -
the merits of the Martin Plaintiffs' challenge, they do not render
the contention that the ban at issue is overly broad unfit for
resolution in federal court.
Indeed, insofar as the District Attorney posits that the
way to develop a better record would be for the Martin Plaintiffs
to first violate the statute, the suggested approach is itself
problematic. It runs headlong into the Supreme Court's consistent
admonition that we avoid putting First Amendment plaintiffs to the
stark choice of having their speech chilled or committing a crime.
See, e.g., Babbitt, 442 U.S. at 298 ("When the plaintiff has
alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution
thereunder, he 'should not be required to await and undergo a
criminal prosecution as the sole means of seeking relief.'"
(quoting Doe v. Bolton, 410 U.S. 179, 188 (1973))); Dombrowski v.
Pfister, 380 U.S. 479, 486 (1965) ("Because of the sensitive nature
of constitutionally protected expression, we have not required
that all of those subject to overbroad regulations risk prosecution
to test their rights.").
3.
If we shift our focus to the hardship prong of the
ripeness inquiry, we also see no reason to conclude that there is
a ripeness problem. Section 99 plainly makes it a crime to engage
- 35 -
in the type of recording that the Martin Plaintiffs seek to
undertake. In fact, the District Attorney does not dispute that
point. Nor has the District Attorney "convincingly demonstrate[d]
that the statute is moribund or that it simply will not be
enforced." N.H. Right to Life Pol. Action Comm. v. Gardner, 99
F.3d 8, 16 (1st Cir. 1996). Indeed, Section 99 has been enforced
in the not-too-distant past. Martin, 340 F. Supp. 3d at 93-94.
Thus, the Martin Plaintiffs have met their burden at this stage of
the proceedings to establish that it is "highly probable that
[they] will at some point find [themselves] either in violation
of" Section 99 "or be forced to self-censor." N.H. Right to Life
Pol. Action Comm., 99 F.3d at 16; see also Alvarez, 679 F.3d at
588, 592 (finding no Article III bar where the plaintiff explained
that "because of a credible fear of prosecution, it ha[d] not
followed through on its [recording] program," where the "statute
plainly prohibit[ed] the [plaintiffs'] proposed audio recording,"
and where "[t]he statute [had] not fallen into disuse").
4.
The District Attorney does point to various precedents
that she contends demonstrate that the Martin Plaintiffs'
challenge is too unformed to satisfy either the fitness or the
hardship prongs of the ripeness inquiry. But, those authorities,
if anything, suggest the opposite.
- 36 -
The District Attorney first points to the portion of
Babbitt in which the Supreme Court found a First Amendment
challenge to a state law denying labor organizers access to
farmworkers on privately owned property not ripe because the
challenge "depend[ed] inextricably upon the attributes of the
situs involved." 442 U.S. at 304. But, while the District
Attorney contends the same is the case here, the Court was
concerned there that only certain privately owned places to which
the plaintiffs might be denied access would be sufficiently
analogous to the company town in Marsh v. Alabama, 326 U.S. 501(1946), to trigger First Amendment constraints at all. Babbitt,
442 U.S. at 304. Here, by contrast, the Martin Plaintiffs seek to
engage in recording only in those "public spaces" that we have
identified as ones in which First Amendment constraints were
triggered. See Gericke, 753 F.3d at 8-9; Glik, 655 F.3d at 82.
The District Attorney's reliance on Renne v. Geary, 501
U.S. 312 (1991), is also misplaced. In that case, the ripeness
problem arose from the fact that there was "no factual record of
an actual or imminent application" of the challenged state law
measure against the plaintiffs. Id. at 321-22. But, no similar
reason for concern exists in this case, given the record of past
enforcement of Section 99.
Finally, the District Attorney relies on Kines v. Day,
which concerned an inmate's First Amendment challenge to a prison
- 37 -
regulation restricting his access to certain publications. 754
F.2d at 29. But, although we found that his challenge as to how
that regulation might actually be applied to him in some
unspecified future circumstance was not ripe, we addressed his
facial challenge to that rule without questioning that it was
properly subject to our review of the merits. See id. at 29-31.
Thus, Kines offers no support to the District Attorney, as the
Martin Plaintiffs' challenge more closely resembles the facial
challenge in Kines that we addressed on the merits than the as-
applied challenge that we held to be unripe in that case. See
also Reed, 561 U.S. at 194 (explaining that a claim can have
"characteristics" of both a facial and an as-applied challenge but
that it is the "relief that would follow" and not the "label" that
"matters"); see also supra Section II.A.1.
5.
For these reasons, the District Court correctly ruled
that the Martin Plaintiffs' pre-enforcement challenge satisfies
both the "fitness" and "hardship" prongs of the test for ripeness
under Abbott Laboratories, 387 U.S. at 148-49, and therefore
necessarily meets the demands of Article III with respect to
ripeness. See Alvarez, 679 F.3d at 594 ("So long as th[e]
uncertainty does not undermine the credible threat of prosecution
or the ability of the court to evaluate the merits of the
- 38 -
plaintiff's claim in a preenforcement posture, there is no reason
to doubt standing.").
B.
We move on, then, to the merits. In taking them up, we
first need to address whether the recording at issue -- secretly
conducted though it is -- warrants at least some degree of First
Amendment protection. Because we conclude that it does, we next
need to explicate the level of First Amendment scrutiny that
Section 99's ban on that recording warrants. With that analytical
foundation in place, we then explain why we conclude that, given
the breadth of the measure's prohibition on that kind of recording,
it cannot survive the degree of scrutiny that we conclude we must
apply.
1.
The Martin Plaintiffs challenge a restriction on their
right to collect information rather than on their right to publish
information that has been lawfully collected. But, the First
Amendment limits the government regulation of information
collection, as our decisions in Glik and Gericke show. See also
Branzburg v. Hayes, 408 U.S. 665, 681 (1972) ("[W]ithout some
protection for seeking out the news, freedom of the press could be
eviscerated."). In fact, as we next explain, those decisions show
that the First Amendment imposes at least some restrictions on the
government's authority to bar the audio recording of police
- 39 -
officers while they are discharging their official duties in public
spaces.
As we explained in Glik, the First Amendment's
protection "encompasses a range of conduct related to the gathering
and dissemination of information." 655 F.3d at 82. That is so,
Glik elaborated, because "[g]athering information about government
officials in a form that can readily be disseminated to others
serves a cardinal First Amendment interest in protecting and
promoting 'the free discussion of governmental affairs.'" Id.(quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)).
In recognizing the "particular significance" of First
Amendment newsgathering rights "with respect to government,"
moreover, Glik noted that "the state has a special incentive to
repress opposition and often wields a more effective power of
suppression." Id. (quoting First Nat'l Bank v. Bellotti, 435 U.S.
765, 777 n.11 (1978)). Glik explained in this regard that
protecting the right to collect information about government
officials "not only aids in the uncovering of abuses, but also may
have a salutary effect on the functioning of government more
generally." Id. at 82-83 (citation omitted). Glik added that the
justifications for protecting newsgathering were "particularly
true" when it came to collecting information about "law enforcement
officials." Id. at 82.
- 40 -
Based on these observations, Glik held the following.
It ruled that the federal constitutional guarantee of freedom of
speech protects the right to record "government officials,
including law enforcement officers, in the discharge of their
duties in a public space," id. at 85, even when the recording,
which there involved both audio and video, is undertaken without
the consent of the person recorded, id. at 80.
Gericke then went on to extend Glik. See Gericke, 753
F.3d at 7-8. There, the person attempting to record both audio
and video was an individual whom the police had pulled over during
a traffic stop, id. at 7, and thus, unlike in Glik, she was not a
mere observer to the police encounter that was recorded but a
participant in it. Further distinguishing the case from Glik, the
recording at issue in Gericke attempted to capture an encounter
that occurred on the side of a highway rather than in a public
park. Id. at 3-4. But, even though the recording was attempted
by a person the police had stopped in a location that was hardly
a traditional site for First Amendment expression, Gericke held
based on Glik that the recording at issue warranted First Amendment
protection, at least to some extent. Id. at 7. Indeed, Gericke
reaffirmed Glik's broad formulation of the kind of recording that
constituted newsgathering and found that it encompassed the
attempted recording there. Id. at 7-9.
- 41 -
Notably, Glik and Gericke accord with the decisions of
several of our sister circuits that similarly have held that such
recording warrants some degree of First Amendment protection as a
type of newsgathering. See, e.g., Alvarez, 679 F.3d at 600(finding that the challenged eavesdropping statute "burdens speech
and press rights" because it "interferes with the gathering and
dissemination of information about government officials performing
their duties in public"); Fields v. City of Philadelphia, 862 F.3d
353, 359 (3d Cir. 2017) ("[R]ecording police activity in public
falls squarely within the First Amendment right of access to
information."); Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000) (recognizing the First Amendment "right to gather
information about what public officials do on public property" and
"to record matters of public interest"); Fordyce v. City of
Seattle, 55 F.3d 436, 442 (9th Cir. 1995) (finding a genuine
dispute of material fact as to whether officers had interfered
with the plaintiff's ”First Amendment right to gather news"). And,
while some courts of appeals have held that this right to record
is not clearly established in some contexts for purposes of
qualified immunity, see, e.g., Kelly v. Borough of Carlisle, 622
F.3d 248, 263 (3d Cir. 2010), none has held that the right does
not exist.
It is true that these other cases -- like Glik and
Gericke themselves -- concerned the open rather than the secret,
- 42 -
nonconsensual recording of police officers. But, Glik described
the scope of the recording activity that triggers First Amendment
protection as a type of newsgathering capaciously as recording
"government officials, including law enforcement officers, in the
discharge of their duties in a public space." 655 F.3d at 85.
Gericke then went on to use that same broad formulation, 753 F.3d
at 9, which does not exempt secret recording.
The logic that Glik and Gericke relied on in setting
forth that encompassing description of First Amendment-protected
recording of police supplies strong support for understanding it
to encompass recording even when it is conducted "secretly," at
least as Section 99 uses that term. To understand why, one need
only consider the Hyde dissent's example of the recording of the
beating of Rodney King.
Like the many recordings of police misconduct that have
followed, the recording in the King case was made from a location
unlikely to permit it to qualify as recording conducted in "plain
sight" of those recorded, just as the dissent in Hyde emphasized.
But, as recent events around the nation vividly illustrate, such
undetected recording can itself serve "a cardinal First Amendment
interest in protecting and promoting 'the free discussion of
governmental affairs,'" and "not only aids in the uncovering of
abuses . . . but also may have a salutary effect on the functioning
of government more generally." Glik, 655 F.3d at 82-83 (quoting
- 43 -
Mills, 384 U.S. at 218); cf. Fields, 862 F.3d at 359 ("Civilian
video . . . fills the gaps created when police choose not to record
video or withhold their footage from the public.").
In fact, as the Martin Plaintiffs point out, audio
recording of that sort can sometimes be a better tool for
"[g]athering information about" police officers conducting their
official duties in public, and thereby facilitating "the free
discussion of governmental affairs" and "uncovering . . . abuses,"
than open recording is. See Glik, 655 F.3d at 82 (quoting Mills,
384 U.S. at 218). That is not only because recording undertaken
from a distance -- and thus out of plain sight of the person
recorded -- will often be the least likely to disrupt the police
in carrying out their functions. It is also because recording
that is not conducted with the actual knowledge of the police
officer -- even if conducted proximate to the person recorded --
may best ensure that it occurs at all, given the allegations that
the Martin Plaintiffs set forth about the resistance from official
quarters that open recording sometimes generates.
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. The circumstances in which such recording could
- 44 -
be conducted from a distance or without the officers' knowledge
and serve the very same interest in promoting public awareness of
the conduct of law enforcement -- with all the accountability that
the provision of such information promotes -- are too numerous to
permit the conclusion that recording can be prohibited in all of
those situations without attracting any First Amendment review.
We thus hold that the Martin Plaintiffs' proposed recording
constitutes a type of newsgathering that falls within the scope of
the First Amendment, even though it will be undertaken secretly
within the meaning of Section 99.2
2.
That such recording qualifies as a species of protected
newsgathering does not mean that Section 99's criminal bar against
it necessarily violates the First Amendment. We cautioned in Glik
that the right to record that was recognized there "is not without
limitations." Id. at 84. We thus must determine whether the
"limitations" that Section 99 imposes on this type of recording
-- conducted secretly as it will be -- comport with the First
Amendment.
Glik had "no occasion to explore those limitations"
because the audio recording of the officers at issue there occurred
2
We thus need not and do not address here the possible
bounds of this right, such as whether it includes recording via
deceptive tactics that would affirmatively mislead officers into
incorrectly thinking that they are not being recorded.
- 45 -
"peaceful[ly]," from a "comfortable" distance, in a "public
space," and in a manner that did "not interfere with the police
officers' performance of their duties." Id. But, although Glik
made clear that such peaceable open recording -- which captured an
"arrest on the Boston Common" -- was "worlds apart" from the
recording of a "traffic stop," id. at 85, Gericke explained that
the distinct concerns about public safety and interference with
official duties implicated by such a stop did not, without more,
"extinguish" the right we recognized in Glik. Gericke, 753 F.3d
at 7 (discussing Glik, 655 F.3d at 82-83). In fact, although
Gericke recognized that the circumstances of a given police
encounter "might justify a safety measure" that could incidentally
constrain citizens' right to record, it held that "a police order
that is specifically directed at the First Amendment right to
[record] police performing their duties in public may be
constitutionally imposed only if the officer can reasonably
conclude that the [recording] itself is interfering, or is about
to interfere, with his duties." Id. at 8.
Gericke did recognize that the government might choose
to regulate such recording in a more general, ex ante manner. But,
it concluded that the government would need a "legitimate
governmental purpose" to impose a limitation of that sort. Id.
Thus, in light of Glik and Gericke, we must decide whether either
the Commonwealth's interest in prohibiting conduct that
- 46 -
"interfere[s]" with police officers' ability to carry out their
duties or some other "legitimate governmental purpose" justifies
Section 99's ban on the secret, nonconsensual audio recording of
police officers discharging their official duties in public
spaces. Id.; see also Glik, 655 F.3d at 84.
Before answering that question, though, we must decide
how tailored Section 99's ban on the recording here needs to be to
the legitimate governmental interest that the Commonwealth claims
Section 99's criminal bar against the recording at issue serves,
whether it is the interest in preventing interference with the
discharge of police functions or some other interest altogether.
We thus turn to that antecedent question, which sounds in the
familiar vernacular of "level of scrutiny."
a.
The District Court agreed with the Martin Plaintiffs
that Section 99's ban is content neutral, because it prohibits
secret recording without regard to the topics or ideas recorded.
Martin, 340 F. Supp. 3d at 105; see also Jean, 492 F.3d at 29("[S]ection 99 is a 'content-neutral law of general
applicability.'" (quoting Bartnicki v. Vopper, 532 U.S. 514, 526
(2001))). Accordingly, the District Court also agreed with the
Martin Plaintiffs that strict scrutiny would not be appropriate.
Martin, 340 F. Supp. 3d at 105.
- 47 -
The District Court expressly pointed out, however, that
the Defendants did not develop an argument that "a standard lower
than intermediate scrutiny" should be applied, as they merely
suggested that such a lower standard "might" be appropriate. Id.
at 106. Thus, the District Court accepted the Martin Plaintiffs'
argument that Section 99's bar on the secret recording at issue
should be evaluated under "intermediate scrutiny," id. at 105,
which required the District Court to determine whether the bar is
"narrowly tailored to serve a significant government interest,"
id. at 106 (quoting Rideout, 838 F.3d at 71-72). The District
Court also noted that for a law to survive intermediate scrutiny,
it "must 'leave open ample alternative channels for
communication.'" Id. (quoting Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989)).
On appeal, the District Attorney challenges the District
Court's decision to apply that level of scrutiny by referencing
precedents applying forum analysis to evaluate restrictions on
expression. She notes that the category "public spaces"
encompasses not only traditional public fora like public parks but
also limited and nonpublic fora, such as the shoulders of highways
and certain areas of public buildings like the site of the
recording at issue in Iacobucci, 193 F.3d at 18. But, she points
out, the intermediate level of scrutiny that applies to content-
neutral restrictions on expression in traditional public fora, see
- 48 -
Cutting v. City of Portland, 802 F.3d 79, 84 (1st Cir. 2015)
(applying intermediate scrutiny), gives way to a lower level of
scrutiny when we evaluate such restrictions in other fora, see Am.
Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 571,
581 (1st Cir. 2015) (asking as to nonpublic fora whether the
restrictions "are not viewpoint-based and are reasonable in light
of the purposes for which the forum was established"). For that
reason, the District Attorney contends, the District Court erred
in applying intermediate scrutiny to Section 99's bar across the
board, as by doing so the District Court failed to attend to the
differing locales in which the planned recording would occur and
thus required the government to satisfy a degree of fit between
means and ends that was unnecessarily demanding.
Neither Glik nor Gericke, however, purported to
predicate the level of scrutiny that applied to the challenged
recording restrictions on forum analysis. And while the Supreme
Court has not addressed a challenge to a prohibition against
secretly (or, for that matter, openly) recording law enforcement,
there is no indication in its precedent that the "forum based"
approach that is used to evaluate a "regulation of speech on
government property," Int'l Soc'y for Krishna Consciousness v.
Lee, 505 U.S. 672, 678 (1992) (emphasis added), necessarily applies
to a regulation on the collection of information on public
property, see United States v. Am. Libr. Ass'n, 539 U.S. 194, 205
- 49 -
(2003) (plurality opinion) ("[P]ublic forum principles . . . are
out of place in the context of this case."); see also id. ("We
expressly declined to apply forum analysis [in National Endowment
for the Arts v. Finley, 524 U.S. 569 (1998)]."); Legal Servs. Corp.
v. Velazquez, 531 U.S. 533, 544 (2001) (noting that the Court's
limited forum cases were related to but did not control its subsidy
cases). Compare March v. Mills, 867 F.3d 46, 53-54 (1st Cir. 2017)
(applying forum analysis to a statute that "restrict[ed]
noisemaking even in public parks . . . [and] other traditional
public fora"), with Pleasant Grove City v. Summum, 555 U.S. 460,
480 (2009) ("[A]s a general matter, forum analysis simply does not
apply to the installation of permanent monuments on public
property."). Nor does the District Attorney offer anything beyond
assertion as to why forum analysis -- in a strict sense -- applies
in the context of the right to engage in the newsgathering involved
here.
The application of intermediate scrutiny also accords
with the approach that we took in Glik and Gericke, even though
neither case explicitly named the level of scrutiny deployed.
Indeed, the District Attorney -- by repeatedly emphasizing that
the facts underlying Glik took place in a traditional public forum
and by conceding that intermediate scrutiny pertains in such a
setting -- implicitly recognizes that we effectively applied that
level of scrutiny in Glik. See Glik, 655 F.3d at 84 (recognizing
- 50 -
that the right to record may be subject to appropriate time, place,
and manner restrictions); see also, e.g., Rideout, 838 F.3d at 71-
72 (citing Ward, 491 U.S. at 791, a case about time, place, or
manner restrictions, in articulating the inquiry for intermediate
scrutiny); McGuire v. Reilly, 260 F.3d 36, 43 (1st Cir. 2001)
(describing the "level of analysis" that applies to "time, place,
and manner" restrictions as "intermediate scrutiny"). And, while
Gericke was no more express than Glik in naming the level of
scrutiny applied, it purported only to be following Glik, despite
the fact that the recording there did not occur in a traditional
public forum.
Finally, the intermediate level of scrutiny the District
Court applied roughly tracks the scrutiny applied to restrictions
on newsgathering in other locales to which the public generally
has access to collect information. This correspondence reinforces
our conclusion that we have no reason to depart from the District
Court's approach here. See Press-Enter. Co. v. Superior Ct., 478
U.S. 1, 13-14 (1986) (holding that a criminal proceeding may be
closed to protect the accused's right to a fair trial only if doing
so is "narrowly tailored to serve that interest," meaning that
"there is a substantial probability that the defendant's right to
a fair trial will be prejudiced by publicity that closure would
prevent" and that "reasonable alternatives to closure cannot
adequately protect the defendant's fair trial rights" (quoting
- 51 -
Press-Enter. Co. v. Superior Ct., 464 U.S. 501, 510 (1984))); see
also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580-81
(1980) (plurality opinion); United States v. Three Juveniles, 61
F.3d 86, 88 (1st Cir. 1995).
b.
We have, then, but one task left to complete: We need
to review the District Court's application of intermediate
scrutiny to the bar that Section 99 imposes, which in turn requires
us to evaluate each of the Commonwealth's purported interests in
enacting the ban on the type of recording in which the Martin
Plaintiffs plan to engage and the extent to which Section 99
furthers those interests.3 As we will explain, we conclude that
the District Court rightly determined that, even though
intermediate scrutiny does not require that a measure be the least
restrictive means of achieving the government's interests, Section
99 is not narrowly tailored to further either of the identified
governmental interests -- namely, preventing interference with
police activities and protecting individual privacy --
notwithstanding their importance. See Martin, 340 F. Supp. 3d at
106-08.
3
We note also that at least one other circuit has
suggested that restrictions on open recording in public places
should be subject to intermediate scrutiny. See Alvarez, 679 F.3d
at 604.
- 52 -
i.
The government is under no obligation to permit a type
of newsgathering that would interfere with police officers'
ability to do their jobs. But, neither Glik nor Gericke accepted
the notion that the mere act of open recording, without more, so
severely disrupted officers in carrying out their duties that it
justified the restriction of such recording in the absence of the
consent of all recorded persons. Those cases in this respect
establish, at the least, that the police's own view of whether
recording of their work is desirable is not the measure of whether
it causes interference that would justify its total prohibition.
Because the recording here will not be done in plain
sight or with the actual knowledge of the officers whose words
will be recorded, they will not even be aware that such recording
is occurring. For that reason, they will not be on specific notice
of a need to take precautions to ensure that words that they do
not wish to have recorded are not. But, insofar as the mere
prospect of being recorded leads officers to feel the need to
refrain from uttering words or engaging in actions that would
constitute misconduct, it hardly interferes with their capacity to
perform their official duties. Nor does the record show how
heightened consciousness on the officers' part that recording may
be occurring, even if the officers are not on specific notice that
it actually is, would appreciably alter their ability to protect
- 53 -
the public either in gross or at the retail level of more
individualized interactions.
It was suggested at oral argument that officers seeking
to converse with confidential informants could be constrained in
their ability to do so, in light of the possibility that any such
exchange would be recorded by an unknown and unseen observer. See
also Alvarez, 679 F.3d at 613 (Posner, J., dissenting). But, we
presume officers are already careful when engaging in such
sensitive conversations within earshot of others, and the record
offers no other details about how any such heightened caution might
disrupt police practice. Thus, the record provides no support for
the conclusion that Section 99 reduces interference with official
police responsibilities in any meaningful way with respect to at
least the mine-run of circumstances -- whether involving an arrest
in a park, a roadside traffic stop, or a gathering in a foyer
following a public meeting in a public building -- in which police
officers may be "secretly" recorded without their consent while
discharging their official functions in public spaces. See
Gericke, 753 F.3d at 8; cf. City of Houston v. Hill, 482 U.S. 451,
463 n.11 (1987) (explaining that true "physical obstruction of
police action" may "constitutionally be punished under a properly
tailored statute" but that such an objective cannot be accomplished
by "broadly criminalizing" First Amendment activity directed
toward an officer).
- 54 -
Accordingly, we conclude that the statute's outright ban
on such secret recording is not narrowly tailored to further the
government's important interest in preventing interference with
police doing their jobs and thereby protecting the public. See
Rideout, 838 F.3d at 72; see also Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 664 (1994) (plurality opinion) (explaining that even
where the government's asserted interests are important it still
"must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way"); City of Los Angeles v.
Preferred Commc'ns, Inc., 476 U.S. 488, 496 (1986) (advising that
courts should not "simply assume" that a statute "will always
advance the asserted state interests sufficiently" (quoting
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789,
803 n.22 (1984))). Rather, despite a record that does little to
show how secret, nonconsensual audio recording of police officers
doing their jobs in public interferes with their mission, Section
99 broadly prohibits such recording, notwithstanding the myriad
circumstances in which it may play a critical role in informing
the public about how the police are conducting themselves, whether
by documenting their heroism, dispelling claims of their
misconduct, or facilitating the public's ability to hold them to
account for their wrongdoing.
- 55 -
ii.
There remains the question whether Section 99's
prohibition against the recording at issue is nevertheless
properly calibrated to serve some other "legitimate governmental
purpose." Gericke, 753 F.3d at 8. The District Attorney contends
that it is, because although Massachusetts "values public scrutiny
of government affairs, including that accomplished through
recordings," it has a "significant interest" in "assur[ing] that
its citizens are aware of when they are being recorded,
safeguarding a specific type of privacy -- not freedom from being
recorded, but rather notice of being recorded." The District
Attorney also presses the related contention that protecting such
a privacy interest helps ensure "the vibrancy of [] public spaces
and the quality of the discourse that occurs there" by allowing
speakers to take comfort in the fact that they will not be
unwittingly recorded.
Protecting the privacy of the citizens of Massachusetts
is a legitimate and important governmental interest. See
Bartnicki, 532 U.S. at 532-33. But, as we noted in Glik, "[i]n
our society, police officers are expected to endure significant
burdens caused by citizens' exercise of their First Amendment
rights." 655 F.3d at 84; see also City of Houston, 482 U.S. at
462-63 ("The freedom of individuals verbally to oppose or challenge
police action without thereby risking arrest is one of the
- 56 -
principal characteristics by which we distinguish a free nation
from a police state."). That includes the loss of some measure of
their privacy when doing their work in public spaces. See Gertz v.
Robert Welch, Inc., 418 U.S. 323, 344 (1974) ("An individual who
decides to seek governmental office . . . runs the risk of closer
public scrutiny than might otherwise be the case. And society’s
interest in the officers of government is not strictly limited to
the formal discharge of official duties."); Jean, 492 F.3d at 30(finding police officers' privacy interests "virtually irrelevant"
where they were recorded searching a private home). Thus, even if
there might be circumstances in which officers -- while in public
spaces and working -- have some privacy interest that the prospect
of secret recording could threaten, the total ban on all such audio
recording of any of their official activities in public spaces
simply because it qualifies as being done "secretly" within the
meaning of Hyde is too unqualified to be justified in the name of
protecting that degree of privacy.
Rather than dispute this point, the District Attorney
focuses on the fact that private citizens in the vicinity of the
officers are not themselves governmental employees, let alone law
enforcement officers on the job. She argues that "[c]ivilians
have many reasons to voluntarily interact" with government
officials, including police officers, in public and that even
civilians who have no intention of interacting with police "might
- 57 -
simply be within audible recording range." Yet, the District
Attorney notes, their words may be picked up by the recording that
the Martin Plaintiffs contend they have a First Amendment right to
undertake without those persons having any notice that recording
is taking place.
In pressing this point, the District Attorney contends
that special attention must be paid to the fact that "when a
recording is made surreptitiously, the person being recorded
unwittingly becomes a captive." She supports this argument by
invoking the Supreme Court's captive-audience cases. See, e.g.,
Hill v. Colorado, 530 U.S. 703, 716-17 (2000); Rowan v. U.S. Post
Off. Dep't, 397 U.S. 728, 738 (1970).
In that line of cases, the Court recognized that
government can protect an "interest" in "avoid[ing] unwelcome
speech" if "the degree of captivity makes it impractical for the
unwilling viewer or auditor to avoid exposure." Hill, 530 U.S. at717-18 & n.24 (quoting Erzoznik v. Jacksonville, 422 U.S. 205, 209
(1975)). The District Attorney argues that the recording of an
unwitting private citizen is tantamount to rendering that person
a captive because "that person is unaware of the recording, and
thus is deprived of any meaningful opportunity to do anything about
it."
But, the captive-audience line of authority concerns
restrictions on expression that the government may impose to
- 58 -
protect persons from being subjected to speech they wish to avoid.
The risk of being subjected to unwanted speech, of course, is not
a concern here. Moreover, the only individuals who will be
recorded by the Martin Plaintiffs are those in public spaces who
are within earshot of police officers and choose to speak. Thus,
we do not see how -- across the board -- the proposed secret
recording results in "substantial privacy interests . . . being
invaded in an essentially intolerable manner." Cohen v.
California, 403 U.S. 15, 21 (1971). For similar reasons, we are
not persuaded by the District Attorney's reliance on Bartnicki v.
Vopper, 532 U.S. at 517, 533. The differences between the
circumstances of the telephone conversation recorded there and
those in which the recording would occur under the Martin
Plaintiffs' desired rule, which pertains only to a far more public
setting, are too great to make the analogy a persuasive one.
We can envision circumstances in which an individual who
is interacting with (or in the vicinity of) a police officer might
have a particularly heightened reason to wish to have notice that
her comments are being recorded. Cf. Fla. Star v. B.J.F., 491
U.S. 524, 537 (1989) (recognizing a privacy interest in the
identity of rape victims); United States v. Cotto-Flores, 970 F.3d
17, 38 (1st Cir. 2020) (recognizing a compelling interest in
"protecting 'minor victims of sex crimes from further trauma and
embarrassment'" (quoting Maryland v. Craig, 497 U.S. 836, 852
- 59 -
(1990))); United States v. Tse, 375 F.3d 148, 164 (1st Cir. 2004)
(recognizing the "important concern[]" of preventing unnecessary
embarrassment to witnesses). But see Branzburg, 408 U.S. at 693(minimizing the interest of newspaper informants who wish to remain
anonymous where "[t]hey may fear that disclosure will threaten
their job security or personal safety or that it will simply result
in dishonor or embarrassment"); see Alvarez, 679 F.3d at 611(Posner, J., dissenting) (cataloging examples of interactions that
an officer may have with private citizens in public). Notice of
recording may help such private individuals avoid the shame or
embarrassment of the recording of their unfiltered comments or
help prevent their statements from being taken out of context.
See 1968 Commission Report at 12 (expressing an interest in
protecting "the person who chooses to speak frankly and freely in
personal conversation" from the exposure of "what he says in jest,
with a wink, for its shock value on his conversational partner, or
to test some belief held by the other party"). But, as a general
matter, an individual's privacy interests are hardly at their
zenith in speaking audibly in a public space within earshot of a
police officer. Cf. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494-
95 (1975). Thus, we conclude that Massachusetts may not deploy
the blunderbuss prohibitory approach embodied in Section 99 to
protect civilians in the core set of situations where their privacy
interests may be heightened. See Ward, 491 U.S. at 799
- 60 -
("Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals."); Frisby v. Schultz, 487 U.S. 474, 485 (1988)
("A complete ban can be narrowly tailored, but only if each
activity within the proscription's scope is an appropriately
targeted evil."); Cutting, 802 F.3d at 86 ("[B]y demanding a close
fit between ends and means, the tailoring requirement prevents the
government from too readily sacrificing speech for efficiency."
(quoting McCullen v. Coakley, 573 U.S. 464, 486 (2014))); cf. Fla.
Star, 491 U.S. at 539 ("We have previously noted the
impermissibility of categorical prohibitions upon media access
where important First Amendment interests are at stake.").
In light of our analysis to this point, we need not
address whether the statute leaves open viable alternative
channels for First Amendment activity. See Watchtower Bible &
Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150,
168-69 (2002) (striking down an ordinance on tailoring grounds
without reaching whether alternative channels of communication
were sufficient). We are not persuaded, however, by the District
Attorney's assertion that Section 99 "preserves adequate
alternative channels" because it "does not limit open recording in
any way." "[A]udio and audiovisual recording are uniquely reliable
and powerful methods of preserving and disseminating news and
information about events that occur in public," Alvarez, 679 F.3d
- 61 -
at 607, and the undisputed record supports the Martin Plaintiffs'
concern that open recording puts them at risk of physical harm and
retaliation and thereby undermines its capacity to serve as an
adequate alternative means of newsgathering if the type of
recording at issue here is barred.
c.
We thus conclude that Section 99, which does not contain
the privacy-based exceptions other states recognize in their
recording bans, see, e.g., Fla. Stat. § 934.02(2), is
insufficiently tailored to serve the important privacy interests
implicated in the context of the Martin Plaintiffs' challenge.4
Accordingly, we affirm the District Court's grant of summary
judgment to the Martin Plaintiffs.
III.
We now turn to the cross-appeals that stem from Project
Veritas's suit challenging Section 99 on First Amendment grounds.
We first consider Project Veritas's appeal from the District
Court's grant of the Defendants' motion to dismiss its claim that
Section 99 is invalid in its entirety under the First Amendment's
4
The District Attorney also "observes," in a footnote,
that Section 99 "might alternatively be analyzed as a regulation
of conduct that imposes a mere incidental burden on expression."
But, the argument is waived for insufficient development. Doe v.
Trs. of Bos. Coll., 892 F.3d 67, 83 n.7 (1st Cir. 2018) (quoting
Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st
Cir. 1999)).
- 62 -
overbreadth doctrine. We then consider its challenge to the
District Court's grant of the Defendants' motion to dismiss its
claim that Section 99 is unconstitutional insofar as it prohibits
the secret recording of private individuals whenever they have no
expectation of privacy. Finally, we take up the District
Attorney's appeal from the District Court's decision to grant
summary judgment to Project Veritas on its claim that this measure
violates the First Amendment insofar as it prohibits the secret,
nonconsensual audio recording of all government officials
performing their duties in public spaces. The District Attorney
challenges that ruling both on jurisdictional grounds and on the
merits. Our review of these challenges -- whether brought by
Project Veritas or the District Attorney -- is de novo. Zabala-
De Jesus, 959 F.3d at 427; Lyman v. Baker, 954 F.3d 351, 359 (1st
Cir. 2020).
A.
The District Court implicitly ruled that Project
Veritas's facial overbreadth claim was ripe, Project Veritas
Action Fund, 244 F. Supp. 3d at 262, 265, and we agree. It
"presents a single, purely legal question." Whitehouse, 199 F.3d
at 34; see also Commodity Trend Serv., 149 F.3d at 687 n.3. Project
Veritas also has adequately shown that it has refrained from some
secret recording that it would undertake but for Section 99's bar,
Project Veritas Action Fund, 244 F. Supp. 3d at 262, which the
- 63 -
District Attorney has previously enforced, see Martin, 340 F. Supp.
3d at 93-94.
The District Court rejected Project Veritas's facial
overbreadth claim on the merits, however, and it is that ruling
that Project Veritas challenges on appeal. We see no error.
A law may be invalidated in its entirety under the First
Amendment overbreadth doctrine only "if 'a substantial number of
its applications are unconstitutional, judged in relation to the
statute's plainly legitimate sweep.'" United States v. Stevens,
559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008)). The District
Court determined that Project Veritas's overbreadth challenge
failed, because "[m]ost" of the statute's applications are
constitutional. Project Veritas Action Fund, 244 F. Supp. 3d at
266.
Project Veritas does identify ten examples of
applications of Section 99 that it argues are unconstitutional and
that "[o]ne can expand these ten examples almost exponentially to
grasp the amazing breadth and reach of this law." But, by looking
solely at one half of the equation, Project Veritas fails to show,
as it must, that the unconstitutional applications are
"substantial" relative to the extensive range of applications it
does not even challenge. We thus affirm the District Court's
- 64 -
rejection of Project Veritas's First Amendment overbreadth
challenge.
B.
There remain the challenges to the District Court's
rulings on Project Veritas's two more narrowly targeted attempts
to show that Section 99 violates the First Amendment insofar as it
bars certain types of recording. In the first of these attempts,
Project Veritas contends that the statute is unconstitutional
insofar as it prohibits the secret, nonconsensual audio recording
of any person who does not have a reasonable expectation of privacy
in what is recorded. In the second, Project Veritas contends that
the statute is unconstitutional insofar as it prohibits the secret,
nonconsensual audio recording of all government officials
discharging their official duties in public spaces.
The District Court ruled against Project Veritas on the
merits as to the former claim but for Project Veritas on the merits
as to the latter. Id. at 265; Martin, 340 F. Supp. 3d at 108.
Thus, we confront an appeal by Project Veritas as to that first
ruling and an appeal by the District Attorney as to the second.
As we will explain, we conclude that neither of the underlying
challenges to Section 99 is ripe.
Our conclusion, we emphasize, does not turn on any
skepticism that, but for Section 99, Project Veritas would engage
in the investigations it describes itself as intending to
- 65 -
undertake. See Torres-Negrón v. J & N Recs., LLC, 504 F.3d 151,
163 (1st Cir. 2007) (explaining that, in the event that "the
plaintiff presents sufficient evidence to create a genuine dispute
of material (jurisdictional) facts," the case must survive a motion
to dismiss). Instead, as we will explain, it rests on the fact
that Project Veritas has not sought relief in bringing these
challenges that is more congruent in scope to an articulated set
of planned investigations. For that reason, we conclude that the
organization through these challenges impermissibly seeks to
transform our First Amendment inquiry "from a necessary means of
vindicating [a party's] right not to be bound by a statute that is
unconstitutional into a means of mounting gratuitous wholesale
attacks upon state and federal laws." Renne, 501 U.S. at 324(quoting Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
484-85 (1989)).
1.
We begin with Project Veritas's First Amendment
challenge to Section 99 insofar as it bars the secret recording of
"individuals who lack[] any reasonable expectation of privacy."
In a response to interrogatories from the District Attorney,
Project Veritas explained that it "defines 'reasonable expectation
of privacy' as a circumstance in which the parties to the
communication may reasonably expect that the communication may not
be overheard or recorded."
- 66 -
That vague yet sweeping definition, however, is
problematic from the perspective of the ripeness inquiry. It fails
to ensure that the "contours" of this challenge to Section 99 are
"sharply defined." Stern v. U.S. Dist. Ct., 214 F.3d 4, 10 (1st
Cir. 2000); cf. Whitehouse, 199 F.3d at 32 (reviewing claim where
the "parameters of the activity that [the plaintiff] proposed to
undertake were discrete and well-defined").
This lack of precision also prompts the concern that it
is merely "conjectural to anticipate" that Section 99 will ever be
applied in many of the distinct contexts to which Project Veritas's
challenge to that measure -- by the organization's own terms --
extends. Babbitt, 442 U.S. at 304. That Project Veritas has
emphasized to us that it intends to record "newsworthy" content
"in which the public has a legitimate concern" but has made no
effort to cabin its request for relief accordingly only exacerbates
the disconnect between the alleged intended action and the
requested relief. And that concern about adjudication of
hypothetical rather than real disputes looms even larger when one
considers the ways in which the First Amendment analysis could be
affected by the types of conversations that are targeted.
In this respect, Project Veritas's claims are distinct
from those brought in Mangual v. Rotger-Sabat, on which the
organization relies heavily for its jurisdictional arguments. See
317 F.3d at 59-60. There, the plaintiff sought declaratory and
- 67 -
injunctive relief to the effect that Puerto Rico's criminal libel
statute incorporated constitutionally deficient standards with
regard to statements about public officials or figures. See id.
at 51-52, 69. The scope of that pre-enforcement protection was
coextensive with the plaintiff's alleged plans to continue working
as an investigative journalist and publish statements about public
figures. See id. at 58, 69.
Nor is Project Veritas's reliance on the Seventh
Circuit's analysis in Alvarez helpful to its cause. As we
explained in our analysis of the ripeness of the Martin Plaintiffs'
challenge, see supra Section II.A.2, Alvarez concerned a very
different plan of recording -- that the ACLU intended to "use its
employees and agents to audio record on-duty police officers in
public places," 679 F.3d at 593. That plan was congruent to the
ACLU's request for relief, which sought pre-enforcement protection
for that very same activity. Id. at 588.
Accordingly, we conclude not merely that the challenge
raises "serious ripeness concerns," as the District Court
recognized, Martin, 340 F. Supp. 3d at 104, but that those concerns
are so serious that Article III precludes this challenge from going
forward in its present state. We thus must vacate the District
Court's merits-based ruling on the ground that this aspect of
Project Veritas's challenge to Section 99 must be dismissed on
ripeness grounds.
- 68 -
2.
Project Veritas's First Amendment challenge to Section
99's bar to the secret, nonconsensual audio recording of
"government officials discharging their duties in public spaces"
raises similar ripeness concerns. In a response to interrogatories
from the District Attorney, the organization defined the phrase
"government officials" as broadly as we can imagine, explaining
that it intended to refer to "officials and civil servants."5
That definition is of concern with respect to ripeness
because Project Veritas has described its planned investigations
in terms that are not nearly so broad. Project Veritas alleged in
connection with this challenge that it seeks to record "government
officials who are discharging their duties at or around the State
House in Boston and other public spaces" in hopes of learning those
officials' unvarnished thoughts about "immigration policy and
deportation"; "to capture whether antifa public events and
protests are peaceful, whether police or other public officials’
interactions with antifa members are non-violent," and to
5
Project Veritas also listed the Black's Law Dictionary
definition of each term. See Official, Black's Law Dictionary
(10th ed. 2014) ("Someone who holds or is invested with a public
office; a person elected or appointed to carry out some portion of
a government's sovereign powers. -- Also termed public
official."); Civil Servant, Black's Law Dictionary (10th ed. 2014)
("Someone employed in a department responsible for conducting the
affairs of a national or local government. -- Also termed public
employee.").
- 69 -
otherwise report on those events; and that its "journalists would
have attended" "a large public event" related to "the ongoing PVA
'antifa' investigation" but for Section 99.
Thus, Project Veritas gives no indication that it
intends to investigate any and every type of civil servant, no
matter their function or place in the governmental hierarchy. But,
if we take Project Veritas at its word and 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 contrast between the narrowness of Project Veritas's
plans and the breadth of the remedy that it has requested leads to
the concern that it has not adequately shown that it intends to
engage in much of the conduct covered by the relief it seeks. Cf.
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 735 (1998) ("The
ripeness doctrine reflects a judgment that the disadvantages of a
premature review that may prove too abstract or unnecessary
ordinarily outweigh the additional costs of -- even repetitive --
[more focused] litigation."). The concern that this disconnect
renders this dispute hypothetical and abstract rather than real
and concrete is compounded by the fact that the First Amendment
analysis might be appreciably affected by the type of government
official who would be recorded. It is hardly clear that a
restriction on the recording of a mayor's speech in a public park
- 70 -
gives rise to the same First Amendment concerns as a restriction
on the recording of a grammar school teacher interacting with her
students in that same locale while on a field trip or public works
employees conversing while tending to a city park's grounds.
Thus, we conclude here, too, that the disparity between
plan and challenge is too great for us to conclude that there is
a live case or controversy as to Section 99's enforcement in the
context of the full spectrum of "government officials discharging
their duties in public spaces." For that reason, we vacate the
District Court's ruling on the merits of Project Veritas's
challenge to Section 99 insofar as it applies to bar the secret,
nonconsensual audio recording of any "government official"
discharging official duties in public spaces. Instead, we hold
that this challenge must be dismissed without prejudice for lack
of Article III jurisdiction on ripeness grounds.
IV.
The privacy that we enjoy, even in public, is too
important to be taken for granted. Cf. Carpenter v. United States,
138 S. Ct. 2206, 2217-18 (2018) (first citing United States v.
Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring in
judgment), then citing id. at 415 (Sotomayor, J., concurring)).
But, so, too, is the role that laypersons can play in informing
the public about the way public officials, and law enforcement in
particular, carry out their official duties.
- 71 -
We conclude that, by holding that Section 99 violates
the First Amendment in criminalizing the secret, nonconsensual
audio recording of police officers discharging their official
duties in public spaces and by granting declaratory relief to the
Martin Plaintiffs, the District Court properly accounted for the
values of both privacy and accountability within our
constitutional system. We further conclude that the District Court
properly rejected Project Veritas's First Amendment overbreadth
challenge, in which the organization sought to invalidate the
measure in its entirety, given the substantial protection for
privacy that it provides in contexts far removed from those that
concern the need to hold public officials accountable. Finally,
we vacate and remand the District Court's rulings as to the
remainder of Project Veritas's challenges, because, in their
present state, they ask us to engage in an inquiry into sensitive
and difficult First Amendment issues -- concerning both privacy in
public and government accountability -- that is too likely to be
a hypothetical one, given the disconnect between the
organization's concrete allegations regarding its intentions and
the breadth of the relief it seeks. We thus affirm the District
Court's judgment in the Martin Plaintiffs' case and affirm in part
and vacate and remand in part its judgment in Project Veritas's.
The parties shall bear their own costs.
- 72 -