Major Update on O’Keefe’s Important First Amendment Case

Submitted by Staff on Fri, 12/09/2016 - 14:22


Massachusetts AG’s Office Makes Outrageous Claim that Veritas Can’t Bring Case to Court as They Haven’t Been Convicted of Felony in the Commonwealth

Animated Judge Tells State Counsel That Veritas is “Pretty Prominent” in “What They Do”

Veritas Counsel States That Massachusetts Recording Law is Worst in the Nation

(BOSTON) Oral arguments regarding two key motions where held in federal court in Massachusetts on November 4, 2016 regarding an important First Amendment case. In order to better protect the constitutional rights of Massachusetts journalists, Project Veritas Action Fund (PVA) initiated legal action in U.S. District Court against Suffolk County, Massachusetts District Attorney Daniel Conley. The suit, Project Veritas Action Fund v. Conley, challenges the Commonwealth’s eavesdropping law which unconstitutionally restricts legitimate newsgathering techniques protected by law in most other states. 

In an interview with the New Boston Post, PVA founder and president James O’Keefe provided the following which highlights the background for this case:

O’Keefe is hoping his organization’s lawsuit will prompt a federal judge to determine that the state law, Chapter 272, section 99, is unconstitutional. The law calls for fines of up to $10,000 and up to five years in prison for criminal violations.

“I could be charged with a crime,” O’Keefe said, should he use a concealed device to record a public official without his or her consent in Massachusetts. “Just for uncovering the truth, what politicians and people in power don’t want people to know.”

O’Keefe called Massachusetts “one of the worst” when it comes to protecting First Amendment rights. He noted that there is precedent on his side, recalling the successful appeal by a man who had originally been convicted of breaking state wiretap laws by secretly recording Boston University police during a 2007 political protest.

At issue is that journalists could be charged with a felony (maximum five years in prison and a $10,000 fine) for engaging in undercover newsgathering even when it involves secretly recording public officials and political candidates in public places. Under current law, journalists could be charged with a misdemeanor (maximum two years and $5,000 fine) merely for possessing undercover recording equipment.  

In most states, “one-party” consent laws allow journalists to record conversations without the consent of the individual being recorded. A few states require “two-party” consent, but allow for recording where there is no reasonable expectation of privacy.  Both types of consent laws allow at least minimal First Amendment protections for investigative journalists; however, current Massachusetts code is so restrictive that journalists face potential jail time for shining the light of transparency on public malfeasance. 

The Complaint for Declaratory and Injunctive Relief was filed on Friday, March 4, 2016 in the United States District Court for the District of Massachusetts, Boston Division. The recent hearing was conducted to discuss the Commonwealth’s motion to dismiss the case and the plaintiff’s motion for Preliminary Injunction.

The hearing opened with the Massachusetts commonwealth’s attorney Ryan Ferch asking for a dismissal. He argued that the case could not be brought to this court with the dumbfounding rationale that PVA journalists had never conducted an undercover investigation using concealed electronic recording devices within the jurisdiction of the court.

“Sometimes you have jurisdictional standing discovery,” stated federal Judge Patti Saris in response. “I mean, what more do you have to say other than, ‘I plan to use this news story and I plan to use this technique, and I am afraid’?” Here is how that argument proceeded from there:

MR. FERCH:  Well, it depends which prong we're talking about.  I'll start with the chilling.  You have to, and the Supreme Court has said in a couple of cases I'm happy to talk about, you have to articulate two parts of the chilling:  one, that you actually have been chilled, and, two, why that is.  And so here we don't have anything beyond just a --

THE COURT:  But suppose they had an affidavit.  I mean, I'm sure they could come up with one, right, from the organization?  I don't know, I don't think there's one in the record, right? 

MR. KLEIN [representing Project Veritas Action]:  Your Honor, no.  However, there is a verified complaint was filed.

THE COURT:  All right, it's verified.  All right, that may suffice.  Somebody swears under oath that "I plan to do an article on slum landlords, and I'm afraid to do it because look at the Glik case," why isn't that enough?  What else could you say? 

MR. FERCH:  Well, I mean, I'll take, for example, the Susan B. Anthony case, which was a recent Supreme Court case.  That was a case where a plaintiff wanted to put up a billboard. They articulated in their complaint, "This is what we want to say.  This is the billboard."  They had gone to the committee to have the billboard.  They had been rejected.  The committee had decided there was probable cause that they would violate a statute, and the Supreme Court said that's enough.  You have an articulation of exactly what we're going to say.  It was undisputed that the statute covered them.

THE COURT:  But in this context, I mean, their business model or journalistic model -- that would be a better way -- their journalistic model is to secretly record you, and so they can't do that in advance, like the Susan B. Anthony billboard, they can't do that because --  --they’d be breaking the law.

According to an observer, Judge Sarris became “pretty animated” a few minutes later as she inquired:

THE COURT: Have you seen these people? I mean, they do this. I mean, this is not just some -- they're pretty prominent in doing this. I mean, I don't disbelieve that they do it, do you?

MR. FERCH: No, but again --

THE COURT: Did you look at their website?

MR. FERCH: Yeah. I mean, your Honor --

THE COURT: I mean, they do it. That's what they do.

“Judge Saris likewise seemed unswayed by arguments that Project Veritas doesn’t have standing to bring the suit, noting, for example, that federal courts in Massachusetts have frequently taken up cases brought by The New York Times,” states an article at Law360 referred to the quoted section immediately below.

THE COURT: New York Times is out of state. They come in here all the time. I mean, with the Boston Marathon, you know, I had 500 media organizations here, 500. So people come in from out of state. They're still journalists.

Regarding the unique aspect of how undercover journalists sometimes obtain footage, PVA’s counsel noted:

MR. KLEIN: Your Honor, I think PVA certainly could, but the question is, then this continues to go in kind of a fundamental misunderstanding of the news-gathering process, is that PVA, a lot of what it gets it stumbles upon. I mean, we're coming into this case serendipitously after a few weeks of PVA's most powerful reports yet, as in 10 million hits on YouTube between two videos. That all began with a happenstance meeting in a bar in Wisconsin with a guy rambling to his heart's content to the point where everybody around could hear him, and the PVA reporter was wearing a hidden recording device. So this idea that PVA can lay out this game plan strikes me as just asking far too much, and then --

“And particularly in the defendant's final reply brief, there's a certain attitude of, ‘Go be real, journalists, and then prove to us that doesn't work, and then maybe you'll have standing to challenge this,’" added Klein a moment later.

As the hearing continued, First Amendment issues took front stage as they moved to Preliminary Injunction motion:

MR. KLEIN: The First Amendment concerns here are that in the Commonwealth, as laid out by the defense, the requirement that someone in PVA were to tell any of those people who were recorded in any of those comments that, "By the way, I'm recording this," or to openly display recording equipment, is not merely to say that those comments would not have been made it onto the record, it is the fact those comments never would have been stated. I think that those claims, had they been written down, had they been recorded in any other form, would simply have been plausibly deniable and in fact incredible. There is a power to video, and audio in particular. There is a power to having truth; hence, the name Project Veritas.

As the hearing concluded, Klein noted how egregious the current Massachusetts law is regarding recording people with electronic devices:

THE COURT: Is this the only state that goes this far?

MR. KLEIN: I believe so, your Honor. Some other states, Maryland has a possession of recording devices

prohibition that is comparable. It's a felony I believe there to possess secret recording devices, so there's the litany, but as far as most states are single-party consent or two-party with the reasonable expectation of privacy exception.

THE COURT: I see. So, okay. Well, thank you very much. It was very well briefed. I enjoyed it, and to be continued, Martin. Okay, thank you.

THE CLERK: All rise.

It’s interesting to note that Judge Saris thanked the lawyers for their briefings. There were four or five law clerks were in attendance, which is an unusually high number, but this is a unique First Amendment case.

Klein feels that this “case is about the broadest censorship of undercover news gathering and public accountability.”

“Such censorship requires the strongest First Amendment remedy,” he added following the hearing. If recording statutes are going to protect privacy, they should protect privacy, not any secret recording, anywhere. That goes beyond protecting privacy and censoring the accountability that PVA has illustrated time and time again.”

“While most states allow you to record where no reasonable expectation of privacy exists (think hotel lobbies or in public gatherings), Massachusetts simply banned all surreptitious recording. Because secretive recording allows investigative reporters to uncover fraud and abuse, it needs to be protected under the First Amendment, which is why we brought our suit in the first place. It’s hard to discover fraud and abuse with bright lights and large cameras,” said PVA counsel Benjamin Barr in this PINAC article.

“The ability to secretly record public officials in places with no expectation of privacy is protected at the very core of the First Amendment,” stated Project Veritas Action spokesperson Stephen Gordon in a PINAC article when the case was initially filed. “Public officials rarely announce their own corruption, fraud or waste from a public podium – which is why secret recordings have traditionally been used by the media in these sorts of cases.  Project Veritas Action Fund simply seeks the same First Amendment protection in Massachusetts we enjoy in other states without the present risk of being charged in criminal court for protected newsgathering efforts.”

If PVA wins the preliminary injunction, Klein expects the Massachusetts Attorney General will appeal the case to the First Circuit Court of Appeals. The Massachusetts General Court (the commonwealth’s legislative body) has considered bills in the past that would amend the law to make it constitutional, so in the meantime this case may prompt them to finally act on it. According to Klein, PVA is prepared for an appeal, and will take the case all the way to the United States Supreme Court, if needed.

“The current laws protect and indemnify the guilty. Our job is to shine the spotlight of truth to expose their dirty laundry,” said O’Keefe.