Project Veritas Action Fund v. Conley

Filing 46

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Project Veritas' Motion for a Preliminary Injunction (Docket no. 21 ) is DENIED. Conley's Motion to Dismiss (Docket No. 26 ) is ALLOWED with respect to the secret recording of private individuals. Pursuant to Fed. R. Civ. P. 12(b)(1), the Motion to Dismiss (Docket No. 26 ) is ALLOWED as to government officials but without prejudice to amending the complaint within 30 days.(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

___________________________________
PROJECT VERITAS ACTION FUND,
Plaintiff,
v.
DANIEL F. CONLEY, in his Official
Capacity as Suffolk County
District Attorney,
Defendant.
______________________________

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Civil Action
No. 16-10462-PBS

MEMORANDUM AND ORDER
March 23, 2017
Saris, C.J.
Plaintiff Project Veritas Action Fund (“Project Veritas”),
a news gathering organization, brings facial and as-applied
challenges to the Massachusetts Wiretap Statute, Mass. Gen. Laws
ch. 272, § 99 (“Section 99”), on the ground that it violates the
First and Fourteenth Amendments by prohibiting secret recording
of the oral conversations of public and private individuals.1 The
verified complaint, brought under 28 U.S.C. §§ 2201-02 and 42

1

Other plaintiffs raised similar claims before this Court in
Martin v. Evans, No. CV 16-11362-PBS, 2017 WL 1015000, at *1 (D.
Mass. Mar. 13, 2017). The Court assumes familiarity with that
opinion.

1

U.S.C. § 1983, seeks declaratory and injunctive relief. The
Defendant, Suffolk County District Attorney, Daniel Conley,
moves to dismiss on the grounds that plaintiff lacks standing
and the complaint fails to state a claim.
After hearing, the Court DENIES the Motion to Dismiss
(Docket No. 26) in part and ALLOWS it in part. The Court holds
that Project Veritas survives the standing challenge with
respect to its claim that the state prohibition of the secret
recording of private individuals violates the First Amendment.
However, the Court holds that Section 99’s ban on the secret
recording of conversations by private individuals does not
violate the First Amendment because the statute is narrowly
tailored to promote the significant governmental interest of
protecting the conversational privacy of Massachusetts
residents. The Motion for Preliminary Injunction (Docket No. 21)
is DENIED.
FACTUAL BACKGROUND
For the purposes of the motion to dismiss, the facts are
taken as true, as alleged in the verified complaint.
Project Veritas is a national media organization primarily
engaged in undercover journalism. Its undercover newsgathering
techniques involve recording and intercepting oral
communications of persons without their knowledge or consent.

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This secret recording often occurs in public places such as
polling places, sidewalks, and hotel lobbies.
These undercover techniques are used in news gathering in a
variety of scenarios. In 2014, Project Veritas utilized
“undercover newsgathering” to discover “a stark contrast between
the public statements of a candidate for United States Senate in
Kentucky and the statements of her campaign staff.” Docket No. 1
¶ 22. In September 2015, Project Veritas “exposed campaign
finance violations in New York using undercover techniques.” Id.
¶ 23. It exposed “electoral malfeasance” in Nevada using similar
recording techniques. Id. ¶ 24. Most recently, it “detailed the
weakness of voter registration laws in New Hampshire by focusing
on the surreptitiously recorded statements of government
officials.” Id. ¶ 25.
Project Veritas has not previously engaged in any
surreptitious recording in Massachusetts, though it wants to,
because of a fear that utilizing undercover techniques in
Massachusetts would expose it to criminal and civil liability
under Section 99.2 Project Veritas hopes to undertake undercover
investigation of public issues in Boston and throughout

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Project Veritas also alleges that another provision of the
statute, § 99(Q), “would subject it to civil lawsuits under
Massachusetts law from aggrieved persons, subjecting it to
claims for actual damages, punitive damages, and attorney’s
fees.” Docket No. 1 ¶ 19. However, PVA does not seek any
relief regarding this section. See id. at 9.

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Massachusetts. Id. ¶ 27. Specifically, Project Veritas alleges
that it “would like to investigate the recently reported
instances of landlords taking advantage of housing shortages in
Boston where students may live in unsafe and dilapidated
conditions. Likewise, [Project Veritas] would like to
investigate the trustworthiness and accountability of government
officials, including police officers, in a variety of public and
non-public settings.” Id. ¶ 21.
LEGAL FRAMEWORK
I.

Motion to Dismiss Standard
Courts evaluate motions to dismiss for lack of standing

under Federal Rule of Civil Procedure 12(b)(1). See United
Seniors Ass’n, Inc. v. Philip Morris USA, 500 F.3d 19, 23 (1st
Cir. 2007). In assessing Project Veritas’ standing, the court
must take the complaint’s well-pleaded facts as true and indulge
all reasonable inferences in its favor. Hochendoner v. Genzyme
Corp., 823 F.3d 724, 730 (1st Cir. 2016). “[A]t the pleading
stage, the plaintiff bears the burden of establishing sufficient
factual matter to plausibly demonstrate his standing to bring
the action. Neither conclusory assertions nor unfounded
speculation can supply the necessary heft.” Id. at 731.
The same basic principles apply to evaluating a Rule
12(b)(6) motion used to dismiss complaints that do not “state a
claim upon which relief can be granted.” See Fed. R. Civ. P.
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12(b)(6). In evaluating a Rule 12(b)(6) motion, the Court must
accept the factual allegations in the plaintiff’s complaint as
true, construe reasonable inferences in its favor, and
“determine whether the factual allegations in the plaintiff’s
complaint set forth a plausible claim upon which relief may be
granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st
Cir. 2014).
To survive a motion to dismiss pursuant to Rule 12(b)(6),
the factual allegations in a complaint must “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at
556). To reach the threshold of plausibility, the allegations
must be “more than merely possible.” Schatz v. Repub. State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Dismissal for
failure to state a claim pursuant to Rule 12(b)(6) is
appropriate when the complaint fails to set forth “factual
allegations, either direct or inferential, respecting each
material element necessary to sustain recovery under some
actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25

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(1st Cir. 1997) (quoting Gooley v. Mobil Oil Corp., 851 F.2d
513, 515 (1st Cir. 1988)).
II.

Massachusetts Wiretap Statute
The Massachusetts Wiretap Statute makes it a crime 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.” Mass. Gen. Laws ch. 272, § 99(C)(1).
Interception is defined as “to secretly hear, secretly record,
or aid another to 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). 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).
DISCUSSION
I.

Standing for Pre-Enforcement Review
Defendant Conley moves to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(1) arguing that Project Veritas lacks
standing to bring this suit since it fails to allege facts that
show, with any plausible degree of specificity, that it intends
to secretly record the oral communications of individuals in

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Suffolk County without their consent in violation of
Massachusetts law.
Project Veritas alleges that if not for Section 99, it
would secretly record “landlords taking advantage of housing
shortages in Boston where students may live in unsafe and
dilapidated conditions” and would also record communications in
order to investigate “the trustworthiness and accountability of
government officials, including police officers, in a variety of
public and non-public settings.” Docket No. 1 ¶ 21. James
O’Keefe, President of Project Veritas, “verif[ied] under penalty
of perjury under the laws of the United States of America that
the factual statements contained in [Project Veritas’] Verified
Complaint concerning [Project Veritas’] existing and proposed
activities are true and correct.” Docket No. 1 ex. 1. Project
Veritas argues that it cannot provide any more specific details
about whom it intends to record, where, when and how frequently
because it cannot know all the developments an investigation may
involve. To disclose this type of information would severely
hinder the success of the investigation.
The First Circuit has stated that “when dealing with preenforcement challenges to recently enacted (or, at least, nonmoribund) statutes that facially restrict expressive activity by
the class to which the plaintiff belongs, courts will assume a
credible threat of prosecution in the absence of compelling
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contrary evidence.” N.H. Right to Life Political Action Comm. v.
Gardner, 99 F.3d 8, 15 (1st Cir. 1996). See generally Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).
In Martin v. Evans, the Court set forth the caselaw
governing pre-enforcement challenges to statutes based on the
First Amendment. 2017 WL 1015000, at *2-4. There the Court
concluded that the plaintiffs, two civil rights activists, would
face a credible threat of prosecution should they engage in
their intended actions of secretly tape recording police
officers. Id. at *4. In Martin, the complaint alleged recent
instances of Section 99 prosecutions in the state “against
secret recording of police officers performing their duties in
public.” Id. at *2. The complaint also alleged that the Boston
Police Department has “official training materials [that]
instruct officers that they have a ‘right of arrest’ whenever a
person secretly records oral communications.” Id.
Section 99 is not a moribund law. Although there are no
statistics in this record about how often persons are arrested
or charged for a Section 99 violation, the Supreme Judicial
Court reaffirmed the vitality of the statute in Commonwealth v.
Hyde. 750 N.E.2d 963, 964 (Mass. 2001) (finding that an
individual may be prosecuted under Section 99 for secretly tape
recording statements made by police officers during a routine
traffic stop). Moreover, when asked at the hearing in Martin,
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Conley’s counsel did not disavow enforcement of Section 99. See
Blum v. Holder, 744 F.3d 790, 799 (1st Cir. 2014) (finding no
standing where “the Government . . . disavowed any intention to
prosecute plaintiffs for their stated intended conduct”).
Project Veritas stated in its verified complaint that it
intends to investigate private landlords. Project Veritas is an
aggressive news gathering organization that has engaged in
significant undercover surveillance of private individuals in
states that permit it. There is no reason to believe it would
not be doing so in Massachusetts if it were not deterred by the
law. As such, the Court finds a credible threat of enforcement
against Project Veritas that has chilled its speech with respect
to its specific intent to investigate “scofflaw” landlords.
With respect to Project Veritas’ claim that it intends to
investigate government officials, however, the allegations are
too vague to pass muster. Project Veritas does not specify any
particular investigation it seeks to undertake. While Project
Veritas states it would be tipping its hand by being too
specific about individuals it is investigating, the law requires
a plausible showing of true intent to investigate that has been
chilled. In evaluating a pre-enforcement challenge, a court must
distinguish between situations where the plaintiff’s “interest
was manifest and the parameters of the activity that it proposed
to undertake were discrete and well-defined,” from cases
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involving “plaintiffs who were unlikely to engage in the
proscribed activity or plaintiffs who had formulated no firm
plans for doing so.” R.I. Ass’n of Realtors, Inc. v. Whitehouse,
199 F.3d 26, 32 n. 2 (1st Cir. 1999).
The Court concludes that Project Veritas has sufficiently
alleged standing with respect to the First Amendment challenge
to the ban on the secret audio recording of private individuals.
However, the motion to dismiss is allowed with respect to
government officials without prejudice to repleading more
specific allegations.
II.

First Amendment As-Applied Challenge
Conley argues that Project Veritas fails to state a claim

under the First Amendment because the First Amendment does not
provide a right to secretly record oral communications. The
First Circuit has recognized that the First Amendment protects
“a citizen’s right to film government officials, including law
enforcement officers, in the discharge of their duties in a
public space . . . .” Glik v. Cunniffe, 655 F.3d 78, 85 (1st
Cir. 2011). Although information gathering about matters of
public interest through audio and audio-visual recording in
public spaces is protected by the First Amendment, it is subject
to reasonable restrictions. Id. at 83-84. The Fifth Circuit
recently cited Glik in Turner v. Lieutenant Driver, concluding
that a “First Amendment right to record the police does exist,
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subject only to reasonable time, place, and manner
restrictions.” 848 F.3d 678, 688 (5th Cir. 2017); see also Smith
v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)
(finding a “First Amendment right, subject to reasonable time,
manner and place restrictions, to photograph or videotape police
conduct”).
As the Court explained in Martin, the Court must apply
intermediate scrutiny because Section 99 is a content-neutral
law. 2017 WL 1015000, at *7. The Court found “[t]he government
does not have a significant interest in protecting the privacy
of law enforcement officials discharging their duties in a
public space” and that the law was not narrowly tailored to
serve other important government interests. Id. at *8. As such,
the Court held, “Section 99, as applied to the secret recording
of government officials in the performance of their duties in
public, violates the First Amendment.” Id. Martin did not
involve a claim challenging Section 99’s prohibition on secretly
recording the conversations of private individuals.
The cutting-edge issue in this case is whether Section 99
violates the First Amendment by categorically prohibiting the
intentional secret recording of private individuals.
The Supreme Court has held, “[p]rivacy of communication is
an important interest.” Bartnicki v. Vopper, 532 U.S. 514, 532
(2001) (involving the illegal tape-recording and broadcast of a
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private conversation about a matter of public concern published
by the media in a union dispute). “Moreover, the fear of public
disclosure of private conversations might well have a chilling
effect on private speech.” Id. at 532-33. The government has a
significant interest in protecting the “conversational privacy”
of its citizens. Am. Civil Liberties Union of Ill. v. Alvarez,
679 F.3d 583, 608 (7th Cir. 2012) (holding that the Illinois
eavesdropping statute violated the First Amendment in an action
involving the open recording of police officers).
The express legislative purpose of Section 99’s unequivocal
ban of secret audio recording is to protect Massachusetts
citizens’ privacy. The statute’s preamble states that secret
recording “pose[s] grave dangers to the privacy of all citizens
of the commonwealth.” Mass. Gen. Laws ch. 272 § 99(A). The
Supreme Judicial Court (“SJC”) stated: “The statute’s preamble
expresses the Legislature’s general concern that ‘the
uncontrolled development and unrestricted use of modern
electronic surveillance devices pose[d] grave dangers to the
privacy of all citizens of the commonwealth’ and this concern
was relied on to justify the ban on the public’s clandestine use
of such devices.” Commonwealth v. Hyde, 750 N.E.2d 963, 967
(Mass. 2001) (quoting Mass. Gen. Laws ch. 272 § 99(A)); see
Commonwealth. v. Gordon, 666 N.E.2d 122, 134 (Mass. 1996) (“It

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is apparent from the preamble that the legislative focus was on
the protection of privacy rights . . . .”).
The SJC has found that the statute is meant to protect
individuals independent of their reasonable expectation of
privacy: “[W]e would render meaningless the Legislature’s
careful choice of words if we were to interpret ‘secretly’ as
encompassing only those situations where an individual has a
reasonable expectation of privacy. If the Legislature had
intended to [prohibit only secret recording where an individual
has a reasonable expectation of privacy], the statute would have
been written in terms similar to those used in the California
eavesdropping statute . . . . Rather, it is apparent from the
Report of the Special Commission on Electronic Eavesdropping,
1968 Senate Doc. No. 1132, that the legislative intent was to
impose more stringent restrictions on the use of electronic
devices by private individuals than is done in other States.”
Commonwealth v. Jackson, 349 N.E.2d 337, 340 (Mass. 1976).
Project Veritas argues that it has the First Amendment
right to record private conversations of individuals speaking in
public places where there is no reasonable expectation of
privacy. But, “private talk in public places is common.”
Alvarez, 679 F.3d at 606. Individuals have conversations they
intend to be private, in public spaces, where they may be
overheard, all the time –- they meet at restaurants and coffee
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shops, talk with co-workers on the walk to lunch, gossip with
friends on the subway, and talk too loudly at holiday parties or
in restaurant booths. These types of conversations are ones
where one might expect to be overheard, but not recorded and
broadcast. There is a significant privacy difference between
overhearing a conversation in an area with no reasonable
expectation of privacy and recording and replaying that
conversation for all to hear. See Alvarez, 679 F.3d at 605-06
(recognizing that the First Amendment permits greater protection
for conversational privacy than for the public conversations of
public officials); see also State v. O’Brien, 774 A.2d 89, 96
(R.I. 2001) (“Although we may expect individuals with whom we
are communicating to hear and even to remember what we are
saying (and perhaps how we have said it), we usually do not
expect them to acquire surreptitiously an exact audio
reproduction of the conversation that they can later replay at
will for themselves or for others.”).
Project Veritas protests that it intends to record
individuals such as “scofflaw” landlords and such newsgathering
serves an important public policy interest protected by the
First Amendment. Of course, reporters can take notes, but
Project Veritas makes a fair argument that audio-recording of an
individual will carry a more powerful punch than a reporter’s
recounting of an encounter. Alvarez, 679 F.3d at 606 (“We
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acknowledge the difference in accuracy and immediacy that an
audio recording provides as compared to notes or even silent
videos or transcripts.”).
Project Veritas claims that Section 99 fails the
intermediate scrutiny standard because the statute is not
narrowly tailored to protect conversational privacy only in
those circumstances where there is a reasonable expectation of
privacy. “Most state electronic privacy statutes apply only to
private conversations; that is, they contain (or are construed
to include) an expectation-of-privacy requirement that limits
their scope to conversations that carry a reasonable expectation
of privacy.” Alvarez, 679 F.3d at 607 (citing Jesse Harlan
Alderman, Police Privacy in the iPhone Era?, 9 First Amend. L.
Rev. 487, 533-45 (2011) (collecting state statutes)); see, e.g.,
Cal. Penal Code § 632(c) (defining “confidential communication”
to exclude circumstances “in which the parties to the
communication may reasonably expect that the communication may
be overheard or recorded”). Project Veritas points out that
without the reasonable expectation of privacy benchmark, it
could be charged with a felony for intercepting oral
communications made by a private person giving a speech on the
Boston Public Common where the speaker had no possible
legitimate expectation of privacy. The SJC has eschewed an
approach that limits the reach of the statute to situations
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where the speaker did not have a reasonable expectation that his
speech is confidential. Commonwealth v. Rivera, 833 N.E.2d 1113
(Mass. 2005). However, the First Circuit pointed out: “Although
the case was resolved on other grounds, four of the seven
justices of the Supreme Judicial Court concurred to note that
the defendant’s unawareness of the audio recording capabilities
of the security cameras did not render the recordings ‘secret’
under the wiretap statute where the cameras were in plain
sight.” Glik, 655 F.3d at 87 (citing Commonwealth v. Rivera, 833
N.E.2d 1113, 1125 (Mass. 2005) (Cowin, J., concurring in part)
(“That the defendant did not know the camera also included an
audio component does not convert this otherwise open recording
into the type of ‘secret’ interception prohibited by the
Massachusetts wiretap statute.”); id. at 1130 (Cordy, J.,
concurring) (“Just because a robber with a gun may not realize
that the surveillance camera pointed directly at him is
recording both his image and his voice does not, in my view,
make the recording a ‘secret’ one within the meaning and intent
of the statute.”)). Thus, the statute permits open recording in
plain sight by cameras or cell phones with an audio component.
Project Veritas argues that incorporating a reasonable
expectation of privacy limitation would adequately protect a
right to privacy that was enforceable in courts under state tort
or statutory law. See Mass. Gen. Laws ch. 214, § 1B (creating
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statutory right to privacy). The Massachusetts Legislature,
though, is not limited to using these after-the-fact tort
remedies which apply only after private conversations are
broadcast in public. 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.
In sum, under the intermediate scrutiny standard, Section
99 is narrowly tailored to serve the purpose of protecting
privacy by permitting only non-secret recordings of private
conversations. Project Veritas has failed to state a claim that
Section 99, as applied to the secret recording of private
individuals, violates the First Amendment.
III. Facial Challenge
To succeed on a facial challenge a plaintiff generally
“must establish that no set of circumstances exists under which
[a legislative act] would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987). In the First Amendment context,
however, the overbreadth doctrine applies to facial challenges.
Virginia v. Hicks, 539 U.S. 113, 118 (2003) (citing Members of
City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 796
(1984)). “It is well established that in the area of freedom of
expression an overbroad regulation may be subject to facial
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review and invalidation, even though its application in the case
under consideration may be constitutionally unobjectionable.
This exception from general standing rules is based on an
appreciation that the very existence of some broadly written
laws has the potential to chill the expressive activity of
others not before the court.” Forsyth Cty., Ga. v. Nationalist
Movement, 505 U.S. 123, 129 (1992) (internal citations omitted).
The overbreadth doctrine requires a substantial number of a
statute’s applications to be unconstitutional, “judged in
relation to the statute’s plainly legitimate sweep.” Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6
(2008). The Supreme Court has recognized the overbreadth
doctrine as “strong medicine” and has limited its application to
instances where a law “prohibits a substantial amount of
protected speech.” United States v. Williams, 553 U.S. 285, 29293 (2008). To the extent that a statute infringes on First
Amendment rights, chills the exercise of a protected activity,
and is “sweeping” and without limitation, it is more likely to
be found constitutionally invalid. See, e.g., New York v.
Ferber, 458 U.S. 747, 771-72 (1982). However, if the reach of
the statute is limited, the statute is less likely to be found
constitutionally overbroad. Id. “It has long been recognized
that the First Amendment needs breathing space and that statutes
attempting to restrict or burden the exercise of First Amendment
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rights must be narrowly drawn and represent a considered
legislative judgment that a particular mode of expression has to
give way to other compelling needs of society.” Broadrick v.
Oklahoma, 413 U.S. 601, 611-12 (1973).
Most applications of Section 99 are constitutional. Section
99 constitutionally protects private conversations in all
settings and conversations with government officials in
nonpublic settings or about non-official matters.
Although Martin found Section 99 unconstitutional as
applied to the recording of government officials in the
discharge of their duties in public, a wide range of legitimate
applications remain. When the likelihood of unjustifiable
applications of the statute is a small fraction of the
constitutional applications, the statute is unlikely to be
substantially overbroad. See, e.g., Ferber, 458 U.S. at 773
(finding statutory ban on child pornography did not constitute
substantial overbreadth because medical, educational, or
artistic works containing nude children doubtfully “amount[ed]
to more than a tiny fraction of the materials within the
statute’s reach”). Since the reach of the statute is limited and
the majority of its applications are legitimate, Section 99 is
not substantially overbroad and it is not, therefore,
unconstitutional on its face.

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ORDER
Project Veritas’ Motion for a Preliminary Injunction
(Docket no. 21) is DENIED. Conley’s Motion to Dismiss (Docket
No. 26) is ALLOWED with respect to the secret recording of
private individuals. Pursuant to Fed. R. Civ. P. 12(b)(1), the
Motion to Dismiss (Docket No. 26) is ALLOWED as to government
officials but without prejudice to amending the complaint within
30 days.

/s/ PATTI B. SARIS________________
Patti B. Saris
Chief United States District Judge

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