Project Veritas Action Fund v. Conley

Filing 79

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Pursuant to Fed. R. Civ. P. 12(b)(1), the Motion to Dismiss (Docket No. 72 ) is ALLOWED without prejudice. See ORDER for Details. (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
September 6, 2017
Saris, C.J.
Plaintiff Project Veritas Action Fund (“Project Veritas”),
a news gathering organization, brings a motion for a preliminary
injunction to enjoin Defendant Daniel F. Conley from enforcing
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 officials engaged in their duties
in public spaces. Defendant, the Suffolk County District
Attorney, moves to dismiss on ripeness grounds.

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The Court assumes familiarity with its previous ruling on
Project Veritas’ First Motion for Preliminary Injunction.
Project Veritas Action Fund v. Conley, No. 16-CV-10462-PBS, 2017
WL 1100423 (D. Mass. Mar. 23, 2017). The Court also assumes
familiarity with the companion case, Martin v. Evans, No. 16-CV11362-PBS, 2017 WL 1015000 (D. Mass. Mar. 13, 2017).
After hearing, the Court ALLOWS the Motion to Dismiss
without prejudice. Docket No. 72.
FACTUAL BACKGROUND
For the purpose of the motion to dismiss, the facts are
taken as true, as alleged in the first amended 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.
This secret recording often occurs in public places such as
polling places, sidewalks, and hotel lobbies. In 2014, Project
Veritas used “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. 48 ¶ 23. In September 2015, Project Veritas
“exposed campaign finance violations in New York using
undercover techniques.” Id. ¶ 24. It exposed “electoral
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malfeasance” in Nevada using similar recording techniques. Id. ¶
25. Most recently, it “detailed the weakness of voter
registration laws in New Hampshire by focusing on the
surreptitiously recorded statements of government officials.”
Id. ¶ 26.
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. Project Veritas hopes to undertake undercover
investigation of public issues in Boston and throughout
Massachusetts. Id. ¶ 30. Specifically, Project Veritas alleges
that it would like to investigate and report on the public
controversy over “sanctuary cities” in Massachusetts and more
generally the motives and concerns of Boston public officials
regarding immigration policy and deportation. Docket No. 48
¶ 22, 30.
MOTION TO DISMISS STANDARD
Courts evaluate motions to dismiss for ripeness under
Federal Rule of Civil Procedure 12(b)(1). See Downing/Salt Pond
Partners, L.P. v. Rhode Island & Providence Plantations, 643
F.3d 16, 17 (1st Cir. 2011). In assessing the ripeness of
Project Veritas’ claim, the Court must take the complaint’s
well-pleaded facts as true and indulge all reasonable inferences
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in its favor. Id. “In resolving a Rule 12(b)(1) motion, we may
also consider other materials in the district court record,
including where those materials contradict the allegations in
the complaint.” Id. Defendant did not seek discovery on the
ripeness issue.
RIPENESS
“Article III restricts federal court jurisdiction to
‘Cases’ and ‘Controversies.’” Reddy v. Foster, 845 F.3d 493, 499
(1st Cir. 2017) (citing U.S. Const. art. III, § 2). “Two of the
limitation’s manifestations are the justiciability doctrines of
standing and ripeness, which are interrelated; each is rooted in
Article III.” Id. (citing Susan B. Anthony List v. Driehaus, 134
S. Ct. 2334, 2341 n.5 (2014) (“[T]he Article III standing and
ripeness issues in this case ‘boil down to the same
question.’”)). “Much as standing doctrine seeks to keep federal
courts out of disputes involving conjectural or hypothetical
injuries, the Supreme Court has reinforced that ripeness
doctrine seeks to prevent the adjudication of claims relating to
‘contingent future events that may not occur as anticipated, or
indeed may not occur at all.’” Id. (citing Texas v. United
States, 523 U.S. 296, 300 (1998)). “‘The facts alleged, under
all the circumstances, must show that there is a substantial
controversy, between parties having adverse legal interests, of
sufficient immediacy and reality to warrant the issuance of’ the
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judicial relief sought.” Id. (quoting Labor Relations Div. of
Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st
Cir. 2016)). “The plaintiff[] bear[s] the burden of alleging
facts sufficient to demonstrate ripeness. Even a facial
challenge to a statute is constitutionally unripe until a
plaintiff can show that federal court adjudication would redress
some sort of imminent injury that he or she faces.” Id. at 501
(internal citations omitted).
The determination of ripeness depends on two factors: “the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.” Sindicato
Puertorriqueño de Trabajadores v. Fortuño, 699 F.3d 1, 8 (1st
Cir. 2012) (quoting Abbott Labs v. Gardner, 387 U.S. 136, 149
(1967), abrogated on other grounds by Califano v. Sanders, 430
U.S. 99 (1977)). “The fitness prong ‘has both jurisdictional and
prudential components.’ The jurisdictional component of the
fitness prong concerns ‘whether there is a sufficiently live
case or controversy, at the time of the proceedings, to create
jurisdiction in the federal courts.’” Reddy, 845 F.3d at 501
(quoting Roman Catholic Bishop of Springfield v. City of
Springfield, 724 F.3d 78, 89 (1st Cir. 2013)). “The prudential
component of the fitness prong concerns ‘whether resolution of
the dispute should be postponed in the name of judicial

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restraint from unnecessary decision of constitutional issues.’”
Id. (quoting Roman Catholic Bishop, 724 F.3d at 89).
“The hardship prong is wholly prudential and concerns the
harm to the parties seeking relief that would come to those
parties from our withholding of a decision at this time.” Id.
(internal citations omitted). “Generally, a ‘mere possibility of
future injury, unless it is the cause of some present detriment,
does not constitute hardship.’” Sindicato, 699 F.3d at 9
(quoting Simmonds v. I.N.S., 326 F.3d 351, 360 (2d Cir. 2003)).
“However, the Supreme Court has made clear that when a plaintiff
alleges ‘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.’” Id.
(quoting Babbitt v. United Farm Workers Nat’l. Union, 442 U.S.
289, 298 (1979)). Most significant here, “when free speech is at
issue, concerns over chilling effect call for a relaxation of
ripeness requirements.” Id. (quoting Sullivan v. City of
Augusta, 511 F.3d 16, 31 (1st Cir. 2007)).
Project Veritas alleges that if not for Section 99, it
would “investigate and report on the public controversy over
‘sanctuary cities’ in Massachusetts.” Docket No. 48 ¶ 22.
Specifically, “it would secretly investigate and record
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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.” Docket No. 48 ¶ 22. 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’] First Amended
Verified Complaint concerning [Project Veritas’] existing and
proposed activities are true and correct.” Docket No. 48 at 13.
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.
At the hearing, Project Veritas admitted that it has not
pursued investigation on “sanctuary cities” in other parts of
the country. Project Veritas cites an article about Chicago
Mayor Rahm Emanuel’s suit against President Donald Trump to
showcase the relevance of this topic –- a city in which
surreptitious recording of police officers performing their
duties in public places is protected, American Civil Liberties
Union of Illinois v. Alvarez, 679 F.3d 583, 586 (7th Cir. 2012),
-- yet Project Veritas has not launched an investigation in
Chicago.

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Defendant Conley moves to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1) arguing that Project Veritas’ sparse
allegations do not provide a factual basis fit for review and
should be dismissed as unripe. See Ernst & Young v. Depositors
Economic Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995) (The
issue presented must be “fit for review,” an inquiry that
typically involves “finality, definiteness, and the extent to
which resolution of the challenge depends upon facts that may
not yet be sufficiently developed.”). Conley alleges that
Project Veritas “has not pled the specific locations where it
would make those recordings, how it would make them (except for
surreptitiously), the content that it would capture, or whom it
would record.” Docket No. 73 at 6. He argues that without this
specificity, Plaintiff’s allegations do not provide the Court an
opportunity to assess whether the proposed recordings would
interfere with the public employees’ ability to effectively
perform her duties, a limitation this Court recognized in
Martin. 2017 WL 1015000 at *8 (“The government also has a
significant interest in restricting First Amendment activities
that interfere with the performance of law enforcement
activities or present legitimate safety concerns. Those
significant interests may justify certain restrictions on audio
and audiovisual recording of government officials’
activities.”); Alvarez, 679 F.3d at 607 (“It goes without saying
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that the police may take all reasonable steps to maintain safety
and control, secure crime scenes and accident sites, and protect
the integrity and confidentiality of investigations.”). Without
these facts, Conley argues, the Court would only be able to deal
in hypotheticals, which is “patently advisory.” Babbitt, 442
U.S. at 290. Conley does not argue that Project Veritas’ claim
is unripe under the second component of the ripeness analysis,
hardship.
Project Veritas relies on the relaxed ripeness requirements
as applied to First Amendment challenges to argue their claim is
ripe for review -- “when free speech is at issue, concerns over
chilling effect call for a relaxation of ripeness requirements.”
Sindicato, 699 F.3d at 9 (quoting Sullivan, 511 F.3d at 31
(“[W]hen First Amendment claims are presented, reasonable
predictability of enforcement or threats of enforcement, without
more, have sometimes been enough to ripen a claim.”(internal
citations omitted))). Project Veritas argues that the First
Circuit “has been abundantly clear: where a credible threat of
enforcement exists, a speaker need not even ‘describe a plan to
break the law or wait for a prosecution under it. . . . that
injury, the chilling effect, is not only likely but has already
come to pass.’” Docket No. 75 at 4 (quoting Mangual v. RotgerSabat, 317 F.3d 45, 60 (1st Cir. 2003)).

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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
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).
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 August 11, 2017
hearing on the motion to dismiss, 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”).
However, Project Veritas’ claim that it intends to
investigate and report on “sanctuary cities” in Massachusetts
and secretly record government officials in effort to learn
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about their motives and concerns about immigration policy and
deportation is too vague and conclusory to pass muster under the
plausibility standard. “The doctrine of ripeness . . . asks
whether an injury that has not yet happened is sufficiently
likely to happen to warrant judicial review.” Mangual, 317 F.3d
at 60 (citing Gun Owners Action League, Inc. v. Swift, 284 F.3d
198, 205 (1st Cir. 2012)). In this case, the claimed injury is
the chilling effect on Project Veritas’ First Amendment
protected speech. See id. In the cases where the Court found
this type of injury, the plaintiff seeking pre-enforcement
review previously engaged in the activity prohibited under the
statute. For example, in Mangual, the plaintiff, a newspaper
reporter, had previously been threatened with prosecution under
a Puerto Rico criminal libel statute for articles he published
about government corruption and “state[d] an intention to
continue covering police corruption and writing articles similar
to those which instigated [a previous] threat of prosecution.”
Mangual, 317 F.3d at 58. In Martin, both plaintiffs had
previously recorded their interactions with police officers.
2017 WL 1015000 at *1. In Sullivan, the First Circuit determined
plaintiffs’ challenge to a parade permit ordinance, which
required 30-day advance notice, was ripe even though it had made
a timely application for a permit because one plaintiff alleged
he had not held a short-notice march because of the notice
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requirement. 511 F.3d at 30-32. In Sindicato, the First Circuit
held: “A party need not marshal all its resources and march to
the line of illegality to challenge a statute on First Amendment
grounds.” 699 F.3d at 9. However, the Court pointed out that
plaintiff union had alleged it had “taken steps in preparation
to carry out those acts” in violation of the campaign finance
law and had spent significant funds promoting certain campaign
proposals. Id.
The law requires a plausible showing of true intent to
investigate that has been chilled. See Labor Relations, 844 F.3d
at 326 (“The burden to prove ripeness is on the party seeking
jurisdiction. The pleading standard for satisfying the factual
predicates for proving jurisdiction is the same as applies under
Rule 12(b)(6) -- that is, the plaintiffs must state a claim to
relief that is plausible on its face.” (citation omitted)). “[A]
‘claim is not ripe for adjudication if it rests upon contingent
future events that may not occur as anticipated, or indeed may
not occur at all.’” Id. (quoting City of Fall River v. FERC, 507
F.3d 1, 6 (1st Cir. 2007)).
The Court concludes that even under the more relaxed
ripeness standard afforded First Amendment protections, Project
Veritas has not alleged sufficient immediacy, reality, or
hardship to warrant judicial relief both as a constitutional or
prudential matter. It alleges no plans, steps, expenditure of
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funds, or past activities that plausibly suggest a present
intent to launch a prohibited investigation. Project Veritas
simply dashed off a possible investigation into sanctuary cities
in Suffolk County to claim its First Amendment activities were
chilled. The ripeness burden is not high but it is not nonexistent even in the area of First Amendment protection.
ORDER
Pursuant to Fed. R. Civ. P. 12(b)(1), the Motion to Dismiss
(Docket No. 72) is ALLOWED without prejudice.
/s/ PATTI B. SARIS________________
Patti B. Saris
Chief United States District Judge

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