On a Tuesday earlier this month, Fred Thys, a reporter for the Plymouth Independent, took a seat in the front row for that evening’s select board meeting and turned on his audio recorder — openly, and in plain view. You may remember Thys from his long career at WBUR Radio. Now he’s on staff at the Independent, one of the larger and better-funded nonprofit news startups that’s popped up in recent years.
Suddenly a member of the board interrupted the proceedings. As recounted by Independent editor and CEO Mark Pothier, that member, Kevin Canty, proceeded to inform those on hand that state law was being violated because an audio recording was being made without any advance notice being given. Although Canty did not call out Thys by name, Pothier wrote that Canty’s words appeared to be directed at the reporter as he told those in attendance:
There is a wiretapping statute that prohibits the discreet recording of even a public meeting by a private individual or member of the media that is punishable by up to five years in state prison, or two and a half years in jail. So if you are making any recording without making those in the room aware of that, I would encourage you to reconsider that particular stance.
Now, Canty was not 100% wrong, though he was more wrong than right, and his warning was certainly at odds with the interests of governmental transparency. Thus he has richly earned a New England Muzzle Award for attempting to interfere with a journalist who was simply trying to do his job.
Let’s count up the absurdities.
- The proceedings were already being live-streamed on YouTube by the local public access operation and would be posted for posterity within a few days of the meeting.
- Canty immediately reached for the state wiretapping law, which was sometimes used to stop citizen activists from recording police officers while performing their duties — but which, as Pothier observes, a federal appeals court ruled was a violation of the First Amendment.
- If it bothered Canty so much, why he didn’t just take Thys aside at a break in the meeting and ask him to announce that he was recording at future meetings?
Justin Silverman, executive director of the New England First Amendment Coalition, told the Independent that “you have a meeting that’s being live streamed and recorded. Certainly, there’s no expectation of privacy here. One really needs to question what the intent was to make that threat of jail time. Was it to intimidate the journalist?”
But Canty, a lawyer, did have a thin reed to grasp onto. Under state law, anyone who plans to make an audio recording of an interview or a gathering needs to inform those present. At one time we all thought that the explicit permission of the party or parties being recorded was necessary, but that was clarified by the state’s Supreme Judicial Court in 2021. Still, you do have to say something.
When I asked Silverman about that, he replied by email that Thys should have notified the chair, although he was within his rights to record whether the chair liked it or not. “That said, I’m not aware of any penalty, if there is one, for not making the announcement,” Silverman said. “I’m also skeptical about whether this requirement would even apply in cases where the meeting is already being recorded by the town and live-streamed.”
Two other points of note.
First, when Canty made his public announcement, he said he was speaking on behalf of the town manager, Derek Brindisi, but Brindisi later suggested that Canty was exaggerating. Brindisi told Pothier that he let a couple of the select board members know that someone was recording and suggested they make an announcement. “So it was nothing other than that … You have to speak to Kevin about why he chose the words that he chose,” Brindisi said.
Canty, for his part, said his remarks were not grounded in any animus toward Thys or the Independent. “It’s just my general practice as a rule as a criminal defense attorney to discourage people from committing felonies,” he said.
Second, Thys said he’s been recording public meetings for years without making an announcement, and he had never run into trouble before. As it turns out, the meeting was covering was unusually fraught — the select board was removing a founding member of the Community Preservation Committee who had chaired it since it was established in 2002. If you can’t stand the heat, etc.
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