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In the past decade, Project Veritas has repeatedly stirred the pot by surreptitiously recording community activists, abortion clinic staffers, union leaders, prominent media figures and others. Now, the outfit founded by James O’Keefe aims much higher — a petition before the Supreme Court to vindicate secret recordings from government overreach.
Specifically, Project Veritas is taking aim at a Massachusetts law that criminalizes the secret taping of public officials. O’Keefe’s outfit sees the ban there as an affront to free speech and the free press, while acknowledging, “This Court has never addressed the First Amendment implications of secret audio recording of oral communications by individuals.”
In Bartnicki v. Vopper (2001), among the most press-friendly opinions ever by the high court, the justices ruled that the media doesn’t violate wiretap laws merely by airing intercepted cellphone conversations assuming they obtained the tapes lawfully and didn’t participate in the interception.
But what about aggressive journalists, documentary filmmakers, and politically active outfits like Project Veritas?
As the latest cert petition sees it, “[T]he First Amendment prevail[s] over restrictive laws that directly prohibit the secret audio recording of speech outside of any legitimate definition of privacy.”
Project Veritas attempts to suggest some conflict in how various courts are reading statutes over illegal wiretapping or electronic eavesdropping. The group couldn’t get the 1st Circuit Court of Appeals to bless its First Amendment challenge to the Massachusetts law, but says the Illinois Supreme Court ruled back in 2014 that a state law that prohibited secret recording under any circumstances was facially overbroad. In that decision, whereas there was no carveout in the Illinois law for situations where someone’s privacy was not at risk, the top Illinois court ruled that the statute had gone too far by burdening substantially more speech than necessary.
Does the 1st Circuit disagree? Not necessarily.
In fact, while the appellate circuit rejected Project Veritas’ arguments, it gave a victory to two civil rights activists who challenged the Massachusetts law insofar as it criminalized the secret taping of police officers doing their duties in public spaces. The conclusion was that the outright ban on such recording wasn’t narrowly tailored to further the government’s interest in preventing interference with the police protecting the public.
As for Project Veritas, the 1st Circuit held that the outfit’s more expansive First Amendment challenge failed on “ripeness” grounds. According to the ruling, the group hadn’t sought relief “congruent in scope to an articulated set of planned investigations.”
Project Veritas now tells the Supreme Court that other appellate circuits have lesser hurdles for finding a controversy ripe, and adds, “To embrace the First Circuit’s approach is to rubber stamp lengthy, burdensome, discovery-driven litigation to invalidate speech-infringing laws. The First Circuit’s approach would also require piecemeal adjudication to secure a First Amendment right. That is, it would require initial litigation to secure the right to record the police, additional litigation to secure the right to record union agents, and so forth for decades. This is not a sensible approach to preserve First Amendment freedoms.”
Here’s the full petition:
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