Protect The 1st filed an amicus brief today at the U.S. Supreme Court in Project Veritas Action Fund v. Rollins opposing a ruling from the U.S. Court of Appeals for the First Circuit. That lower-court ruling upholds a Massachusetts law making it illegal for anyone but law enforcement officers to record others without their consent. The First Circuit, unlike other circuit courts of appeal, ignored the threat such laws pose to First Amendment rights of speech and the press.
“The plaintiff, Project Veritas, is a conservative activist group that you might love, hate or simply want to ignore,” says Gene Schaerr, Protect The 1st general counsel. “But their rights are everyone’s rights. Had this law been in effect in Minnesota, 18-year-old Darnella Frazier would not have been able to film the police and we would never have heard of George Floyd. In fact, she would have ended up in handcuffs instead of receiving a Pulitzer Prize citation.”
The PT1st brief surveys the value of undercover reporting throughout American history, beginning with the work of groundbreaking investigative journalists like Nellie Bly – who posed as a maid to expose abuses by employment agencies in 1887 – and Upton Sinclair, whose work in slaughterhouses prompted President Theodore Roosevelt to sign the Meat Inspection Act in 1906. Undercover practices, used by journalists and citizens alike to gather evidence against governmental and private entities to build support for meaningful policy changes, are now almost entirely illegal in Massachusetts.
There is still a clear public interest in exposing private misdeeds, and the most effective way to sort the innocuous from the genuinely harmful is to protect the flow of information. Whether it’s a Georgia woman exposing inappropriate physical contact from a physician, or a whistleblower gathering evidence about overt racism in the workplace, often the only way to gather meaningful evidence is to record without the offending party’s knowledge where such parties do not have a reasonable expectation of privacy.
Such tactics are often the only defense for the defenseless. In 2014, a disabled 15-year-old special needs boy in a Pennsylvania school secretly used his iPad to record the behavior of bullies tormenting him. Police charged him with illegal wiretapping – the kind of outcome that the Massachusetts law would now endorse.
Even without accounting for the clear public interest in allowing citizens to expose wrongdoing around them, Massachusetts’s law presents several clear dangers to the average citizen of the 21st century. Does the prohibition against recording an individual without consent extend to technology like nanny cams or Ring doorbells? Must a victim of a drunk driver obtain that driver’s permission before sharing a dashcam video with the police? Situations like these are likely not the intent behind the Massachusetts law, but such eventualities – as with the special needs student in Pennsylvania – are inevitable when individual freedoms are curtailed so broadly.
“The Supreme Court should step in and take this opportunity to allow citizens to protect both their interests and the public’s,” Schaerr said. “Massachusetts’s prohibition on recording without consent already clearly violates the First Amendment right of Americans to record public officials performing their duty. However, the Supreme Court should go one step further and make it clear that Americans have the right to record where others lack a reasonable expectation of privacy.”