SJC rules that deception in recording someone does not violate the law

Joe Curtatone. Photo (cc) 2019 by the Somerville Media Center.

The state Supreme Judicial Court on Monday issued an important — and, to me at least, surprising — clarification of the Massachusetts wiretapping law, ruling that it’s not necessary to obtain someone’s consent before recording them. All that’s needed, the court said, is to inform the second party that they’re being recorded. That doesn’t change even if the person making the recording lies about their identity. Here’s Travis Andersen’s account in The Boston Globe.

The case involves Kirk Minihane of Barstool Sports, who in 2019 recorded an interview with Somerville Mayor Joe Curtatone by claiming to be Globe columnist Kevin Cullen. Minihane then played the interview on his podcast. Curtatone sued, arguing that he would not have agreed to being recorded if he had known he was speaking with Minihane rather than Cullen. Justice Frank M. Gaziano writes:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against “interception” within the act.

And here’s Gaziano’s conclusion:

Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.

The first indication of where the case might be headed came earlier this year, when the ACLU and the Reporters Committee for Freedom of the Press filed a brief in support of Minihane and Barstool.

Massachusetts has often been described as a “two-party consent” state when it comes to recording conversations. But even before Minihane recorded Curtatone, it was clear in some legal circles that the word “consent” was misleading. For instance, here is an explanation of the law published several years ago by the now-defunct Digital Media Law Project at Harvard’s Berkman Klein Center for Internet & Society:

Massachusetts’s wiretapping law often referred to is a “two-party consent” law. More accurately, Massachusetts makes it a crime to secretly record a conversation, whether the conversation is in-person or taking place by telephone or another medium…. Accordingly, if you are operating in Massachusetts, you should always inform all parties to a telephone call or conversation that you are recording, unless it is absolutely clear to everyone involved that you are recording (i.e., the recording is not “secret”). Under Massachusetts’s wiretapping law, if a party to a conversation is aware that you are recording and does not want to be recorded, it is up to that person to leave the conversation.

Even after Monday’s SJC ruling, the law in Massachusetts remains unusually strict. According to the law firm Matthiesen, Wickert & Lehrer, 38 states plus the District of Columbia merely have a “one-party consent” law. Since the person making the recording has obviously given their consent, that means recording someone secretly in those states is legally permissible.

I tell my students that if they want to record an interview, whether in person or by phone, to ask for the subject’s consent. Then, after they turn on their recorder, tell them that they’re now recording and ask if that’s all right. That way, not only do they have the interview subject’s permission, but they have that permission on record. Minihane’s victory doesn’t change the ethics of recording someone without their knowledge.

One aspect of Monday’s ruling worth thinking about is that two-party consent, even under a looser definition of “consent,” can make it harder to engage in certain types of investigative reporting. Minihane obviously was just recording Curtatone for entertainment purposes. But undercover reporting, though less common than it used to be (thanks in part to the Food Lion case), can be a crucial tool in holding the powerful to account.

In Massachusetts, it remains illegal for a reporter to secretly record someone. The SJC’s decision doesn’t change that.

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In battle for access, OpenCourt wins another round

OpenCourt, an innovative project set up to cover proceedings in Quincy District Court, has won another round, as Supreme Judicial Court Associate Justice Margot Botsford has ruled that it may expand its live-streaming to a second courtroom.

In so doing, Botsford rejected a move by Norfolk County District Attorney Michael Morrissey and public defenders to keep OpenCourt out.

Earlier item here; Boston Globe story here; the text of Botsford’s ruling here.

Prosecutors, defenders seek to muzzle OpenCourt

Despite a ruling by the state Supreme Judicial Court in its favor, OpenCourt continues to run into legal roadblocks in its quest to cover proceedings in Quincy District Court.

In the latest move, the office of Norfolk County District Attorney Michael Morrissey and the Committee for Public Counsel Services — that is, public defenders — are seeking to block OpenCourt from expanding its livestreaming operations to a second courtroom known as Jury Room A.

The request will be heard by a single justice of the SJC.

According to OpenCourt:

As of this writing, OpenCourt is the only news organization currently prohibited from covering trials in Courtroom A, also known as Jury Room A.  Rule 1:19, the Massachusetts Camera in the Court statute, presumes that courtrooms are open to media….

Members of OpenCourt have for months openly planned to begin coverage of Jury Room A, and were set to begin livestreaming proceedings on Monday, July 16. Those plans are currently in a temporary state of limbo as we await  single justice review.

Morrissey recently received a Boston Phoenix Muzzle Award for attempting to block OpenCourt, which is affiliated with WBUR Radio (90.9 FM),  from posting archives of its livestreamed footage, a move that was shot down by the SJC.

Update, Aug. 15: SJC Associate Justice Margot Botsford ruled on Tuesday in favor of OpenCourt. The Boston Globe covers her decision here. The full text of her ruling is available here.

OpenCourt wins a crucial First Amendment case

John Davidow of WBUR and OpenCourt

Please pardon the near-silence I’ve been maintaining here. I’m co-chairing a faculty search committee, and this week and next leave me with little time for anything other than that and teaching. (And picking arguments on Twitter.)

But I do want to call your attention to an important decision by the state’s Supreme Judicial Court. On Wednesday, the court ruled that OpenCourt, the WBUR-affiliated project that offers gavel-to-gavel coverage of proceedings in Quincy District Court, cannot be ordered by the government to redact any of its coverage.

Essentially, what happened was this. The lawyer for the defendant in a horrific child-rape case blurted out the name of the victim during public court proceedings. District Attorney Michael Morrissey sought to impose an order prohibiting OpenCourt from including the girl’s name in its video archives.

OpenCourt argued, rightly in my view, that as a matter of standard journalistic practice, no news organization present would use the girl’s name — but that it would violate the First Amendment to order such discretion. Underscoring OpenCourt’s argument is that several news organizations were present that day, yet Morrissey sought an order only against OpenCourt.

The SJC’s decision says in part:

We conclude that any order restricting OpenCourt’s ability to publish — by “streaming live” over the Internet, publicly archiving on the Web site or otherwise — existing audio and video recordings of court room proceedings represents a form of prior restraint on the freedoms of the press and speech protected by the First Amendment and art.

OpenCourt and the DA’s office have been at loggerheads from the beginning. The SJC’s ruling should provide some clarity to what had been a murky situation.

John Davidow, executive editor of new media at WBUR and the force behind OpenCourt, recently spoke about the project and the SJC case with my media-law students. Joe Spurr, OpenCourt’s director, was a student in my media-law class a few years ago.

What they’re doing is an important experiment in opening up what has traditionally been the most closed part of government.

Margaret Marshall’s legacy

Margaret Marshall

The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.

But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.

My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.

And speaking of Lewis, I’ve read two of his books on the First Amendment, and they are both first-rate: “Make No Law: The Sullivan Case and the First Amendment” and “Freedom for the Thought We Hate: A Biography of the First Amendment.” Highly recommended.

An important libel ruling by the SJC

The state’s Supreme Judicial Court issued an important decision today that reaffirms protections for the news media against libel suits.

The case involved a town employee in Abington who was fired after sexually explicit images were discovered on his town-owned computer. The Enterprise of Brockton published a series of stories on official actions taken against the employee (who was eventually fired), based almost entirely on anonymous sources.

The SJC decision, written by Justice Robert Cordy, found that the fair-report privilege, which allows journalists to report libelous statements made in the course of official proceedings, applies even when those reports are based on anonymous sources.

Cordy also ruled that the Enterprise’s stories were substantially fair and accurate despite an error in one of the stories, and that the ex-employee could not sue the paper for intentionally inflicting emotional distress.

Those are the highlights. First Amendment lawyer Robert Ambrogi offers a deeper analysis here. The full text of the decision is here. (Via Universal Hub.)

One in five

With the Massachusetts Legislature on the verge of repealing a 1913 law that’s made it difficult for out-of-state gay and lesbian couples to marry here, we’ve reached a remarkable moment in the rise of same-sex marriage — more remarkable than perhaps most people realize.

Yes, only two states allow same-sex marriage: Massachusetts and California. But, since May, the state of New York has recognized same-sex marriages performed in other jurisdictions, making it possible for New York couples to marry in, say, Canada or Massachusetts.

The combined population of Massachusetts, California and New York is 62.2 million — nearly 21 percent of the total U.S. population of 299.4 million. That means one in five Americans lives in a state where same-sex marriage is recognized.

California voters might repeal same-sex marriage this November. But given that the state’s Republican governor, Arnold Schwarzenegger, opposes the anti-marriage referendum, there’s reason to be optimistic.

A final observation about Massachusetts. Yesterday’s state Senate vote to repeal the 1913 law was unanimous. The vote in the House is expected to be overwhelming. Can we finally stop the charade that gay marriage was forced on us by “unelected judges,” as critics inevitably charge?

It may have taken the state’s Supreme Judicial Court to start the debate. But last year opponents failed to win over the mere 25 percent of legislators needed to place the question on the ballot. And now our elected legislators are taking the final steps toward normalizing same-sex marriage, secure in the knowledge that most of their constituents either support marriage equality or don’t strongly object.

More: Esther offers some observations at Gratuitous Violins.

What about health care?

Not to buy into the savvy-bloggers-versus-clueless-MSM trope. But it does appear that the mainstream media might have missed one of the most significant aspects of yesterday’s vote by the Legislature to advance the anti-gay-marriage constitutional amendment. By their omission, the media may have helped create the false impression that legislators were acting on principle rather than expediency.

Both the Globe and the Herald today cite last week’s Supreme Judicial Court ruling that legislators must vote up or down on citizen initiatives as the main reason that the amendment was not killed through a parliamentary maneuver, as has happened on several occasions in the past.

In the Globe, Frank Phillips and Lisa Wangsness write:

[T]he vote marked a dramatic shift in fortune for social conservatives and Governor Mitt Romney, who just weeks ago had little hope the petition would move forward. Both they and same-sex marriage advocates said the Supreme Judicial Court’s ruling was the major factor that shifted the political ground in favor of the proposed amendment.

In the Herald, Casey Ross puts it this way:

[State Sen. Richard] Tisei and other observers said [Gov.-elect Deval] Patrick, who called a press conference to explain his opposition in the morning, did not seem to understand the impact of a Supreme Judicial Court ruling last week that unambiguously stated that lawmakers had to take an up-or-down vote.

WBZ-TV (Channel 4) political analyst Jon Keller writes this on his blog:

[T]he SJC’s ruling that legislators were obligated to vote today was cited by everyone involved in the con-con, from [Massachusetts Gay and Lesbian Political Caucus co-chair] Arline Isaacson to Trav [that would be Senate President Robert Travaglini] to Mitt Romney, as a key factor in what occurred. The same SJC that infuriated so many with the gay-marriage ruling has now restored its legitimacy in the minds of all but the most obtuse.

So there you have it — reluctant legislators obey the court and uphold their oath of office by voting to advance an amendment that only 31 percent of them support. Let’s give them a hand.

But wait — wasn’t there another constitutional amendment the legislators were supposed to vote on yesterday? Uh, the answer to that would be “yes.” A citizen initiative to amend the state constitution by guaranteeing everyone health care (Media Nation is not clear on the details) was supposed to be voted on yesterday, just like the anti-gay-marriage amendment. And guess what? It wasn’t. I can find virtually no mention of this in today’s coverage — but several bloggers picked up on it immediately.

Most prominent was Blue Mass Group, which has taken a pounding from its liberal readers for insisting that the Legislature vote on all constitutional amendments, including the gay-marriage ban. Last evening, Blue Mass Group blogger David Kravitz, coming off as sadder but wiser, wrote:

The results are in: the legislature took a vote on the merits of the anti-marriage amendment, and advanced it to the 2007-08 session, but did not do so on the health care amendment, so it died on the vine. So they have — no question — violated their oaths of office. And they’ve made those of us who asked them to follow the law on the marriage amendment, even though we suspected the results would be disappointing, look pretty silly. Thanks guys.

The Outraged Liberal, who had urged the Legislature to engage in “civil disobedience” by refusing to vote on the anti-marriage amendment, opined last night:

Process liberals may have also learned a very hard lesson — particularly with the Legislature’s refusal to vote on the health care amendment. Next time there may be a better understanding that principle of the question is more important than the principle of the process.

Universal Hub wraps up blogger comment this morning — again, acknowledging the hypocrisy of the Legislature for upholding the constitution by voting on gay marriage but then thumbing its nose on health care.

The sole mainstream-media reference to the health-care amendment I could find this morning in my admittedly less-than-comprehensive search was in this story, by David Kibbe of Ottaway News Service. His lengthy account of the gay-marriage debate ends with this:

In other action yesterday, the Legislature bottled up a proposed ballot question for universal health care by sending it a committee. Opponents of the question said it would hamper the state’s efforts to establish a landmark health care law to greatly expand health coverage. But those who backed it said it would help the state achieve its goal.

That seems pretty straightforward, doesn’t it? The legislative session expired yesterday, so the health-care amendment can no longer be considered for the 2008 ballot. Thus it would appear that the Legislature explicitly ignored the SJC’s vote-or-else decree, making a mockery of the supposed respect for the process it demonstrated by advancing the anti-marriage amendment.

The media’s failure to point out this prime example of constitutional hypocrisy seems so mind-boggling that I keep thinking I must be missing something; that for some technical reason perhaps the Legislature was not obligated to vote on health care. If I’m wrong, let me know — not that you need to be told.

Update: Laura Kiritsy of Bay Windows gets it right. Kiritsy also reports that legislators went ahead and voted despite a legal opinion from the Senate counsel that they didn’t have to.

Update II: Good editorial in the MetroWest Daily News.

And so it ends

The Legislature has approved the same-sex-marriage ban without even doing it on principle: It voted to advance the anti-gay-marriage amendment to the next session while killing a health-care amendment on procedural grounds, in open defiance of the Supreme Judicial Court.

David Kravitz of Blue Mass Group, who’s pro-gay marriage but who favored a vote on good-government grounds, sounds like he might have learned something today. We’ll see.

Further thoughts on Article 48

With the Legislature scheduled today, once again, to vote on a proposed constitutional amendment that would outlaw same-sex marriage, I want to develop a bit more fully an argument I offered over the weekend in the comments section.

Legislators face a difficult dilemma. Under the terms of Article 48 of the Massachusetts Constitution, they must vote on a citizen petition that would ban gay marriage. Just 50 of the 200 legislators — 25 percent — need to vote “yes” for the amendment to move on to the next session of the Legislature. If it gets 25 percent again, the amendment would go on the 2008 ballot, and would become part of the constitution if it received a simple majority.

The trouble is that though most legislators oppose the anti-marriage amendment, enough support it that the 25 percent hurdle can be easily met. That’s why the Legislature voted to go into recess rather than hold a vote back in November. But using such parliamentary tactics became more difficult last week when the Supreme Judicial Court ruled that the Legislature must hold an up-or-down vote on the merits of the amendment itself, even though the court acknowledged there is no way to enforce its ruling.

The court’s decision naturally provided a boost to the anti-marriage crowd. But it also bolstered the position of process liberals like the bloggers at Blue Mass Group, who believe the right thing to do is for legislators simply to vote down the amendment, thereby preventing its appearance on the 2008 ballot. A nice thought, but, as Arline Isaacson, co-chair of the Massachusetts Gay and Lesbian Political Caucus, tells the Boston Globe, there’s no way the pro-marriage majority can muster the 75 percent it would need to defeat the amendment.

Bay Windows editor Susan Ryan-Vollmar, writing for Media Nation, and the Outraged Liberal, in a post on his own blog, have called for the Legislature to defeat the amendment by any means necessary — that is, to defy the Supreme Judicial Court and kill the marriage ban by staying home or by voting for another recess. I agree. And though I don’t expect to change anyone’s mind, I hope that by the time you finish reading this, you’ll at least have a better understanding of what the real issues are.

I’m not a fan of argument by analogy. Often, it’s the next-to-last refuge of a scoundrel. (Here is the last.) But in this case I think it may be useful to offer a comparison to slavery.

Let’s say a group of citizens began a petition drive to enslave all Massachusetts residents of African ancestry. Let’s say they got more than enough signatures to place the matter before the Legislature. Now, many analogies fall apart for lack of logic, but I think this holds up pretty well. As with the anti-gay-marriage amendment, a slavery amendment would subject the rights of a minority group to the whims of the majority, and take away existing rights. And the analogy also works because the whole point of a constitutional amendment is that it can literally be about anything.

Now, it’s true that the Massachusetts Constitution does not allow citizen-initiated amendments about certain matters. (Read this and ask yourself how the anti-marriage measure passed muster, given that it would essentially overturn the SJC’s Goodridge decision, which legalized same-sex marriage.) And it’s also true that a state amendment to bring back slavery would be overruled because it conflicts with the U.S. Constitution.

But the principle holds. In fact, it would be perfectly legal to amend the U.S. Constitution to reinstate slavery. No, my analogy isn’t perfect, but it’s not bad. So bear with me and assume, for the sake of this exercise, that a slavery amendment can be properly put before the Legislature, and that 55 or 60 legislators — more than 25 percent — have already announced their intention to vote in favor.

What should a good, decent anti-slavery legislator do? Should he insist on a floor vote, in accordance with Article 48, and hope against hope that the amendment would fail to get 25 percent? Or should he do anything he could to kill the amendment, even if it means defying the Supreme Judicial Court and thus violating the Massachusetts Constitution?

I would suggest that every responsible member of the Legislature would take whatever action was necessary to kill such an amendment, and not worry about the niceties of Article 48. And I would hope that Blue Mass Group, Boston Globe columnist Scot Lehigh and other process liberals would applaud.

Now, if you think my analogy makes any sense, then you must conclude that the reason legislative defiance seems unwarranted in the case of the anti-gay-marriage amendment is that we do not take gay and lesbian equality as seriously as we do the rights of African-Americans. Thus, the matter before the Legislature today comes down to a moral judgment — i.e., which group we think is more deserving of our outraged indignation.

Two other matters:

First, several Media Nation commenters claim that referring to legislative defiance as “civil disobedience” bestows a grandeur that is undeserved, since there are no consequences anyone must pay for his or her refusal to vote. In fact, as the SJC pointed out, legislators can be voted out of office if their constituents don’t like what they’ve done. The fact that this rarely happens doesn’t mean it’s not a possibility. That’s how we hold people accountable in a representative democracy. We received a lesson in that recently, as the death of former president Gerald Ford occasioned a re-examination of his pardon of Richard Nixon, which almost surely cost Ford the election in 1976.

Second, as Lehigh, Globe columnist Jeff Jacoby and others have correctly pointed out, the Legislature’s refusal to act on the anti-marriage amendment (and many other amendments over the years) amounts to a de facto repeal of Article 48. I suggest that the way to fix this is (yes) through a constitutional amendment. There is a deep flaw in a constitutional provision that forces the Legislature to act against a majority of its members’ wishes and to suspend its own rules and procedures — such as the right of any member to file a motion to go into recess.

The 25 percent minimum should be eliminated and replaced with a simple majority requirement. That way, everyone would know the rules. And citizens would have a meaningful right to amend the constitution.

Update: Bay Windows is blogging the constitutional convention here.