Barbara Howard: The group Project Veritas was caught this week trying to trick the Washington Post into publishing phony sexual assault allegations against Alabama Senate candidate Roy Moore. It is not the first time that that group has used hidden recording devices to try to goad reporters, media executives and others into making unflattering and sometimes unprofessional comments. But in Massachusetts and in some other states, it is a crime to record conversations without consent. So Project Veritas is challenging Massachusetts law — suing the Suffolk County district attorney's office. And with us to explain that lawsuit is Northeastern University law professor and WGBH News legal analyst Daniel Medwed. Hi, Daniel.
Daniel Medwed: Hi, Barbara.
Howard: So what does Massachusetts law say?
Medwed: Massachusetts law says that you may not intercept the oral communications of another person, a government official discharging her official duties, or a private citizen without their consent.
Howard: Project Veritas says that the prohibition against recording these kinds of things ... they're saying that it's unconstitutional?
Medwed: That's right. Their argument is that the Massachusetts law is unconstitutionally overbroad, that it captures unfairly protected First Amendment speech, including the right to a free press. And that's why they've filed a federal lawsuit. This is a lawsuit saying that Massachusetts state law interferes with the federal constitutional right to a free press.
Howard: What was the intention, or what is the intention of the law in Massachusetts, as it stands now?
Medwed: I think the intention is twofold. First and foremost, it's designed to protect privacy interests. Private individuals who are out on the street may be having a conversation, maybe have a reasonable expectation of privacy in that conversation. They shouldn't have to fear that their conversations are being recorded and possibly being disclosed. Second, for government officials, I think the idea is that even though they are discharging their official duties and are, of course, subject to public scrutiny, the idea that they might be surreptitiously being recorded could somehow compromise their conscience, they might become more tentative, and that might not necessarily be what we want.
Howard: You know, we're a radio station, so we record people all the time, as you know, and we always inform them that we're recording. And there's a difference there. Out in the street, though, if we're covering, you know, for example a protest with hundreds of people, we just can't get permission from each one of them. But then again, they don't have any expectation of not being recorded there. But if I go and I talk to someone in a private space, I make it clear — here I am, I'm holding a microphone, clearly recording — at least that's my understanding.
Medwed: That's exactly right, and it relates to the expectation of privacy. When you're out in a public protest, in a large gathering, you don't necessarily have a reasonable expectation of privacy. But if you're in a more private setting, even if you're outside in public and you're walking down the street with a friend, maybe you do have a reasonable expectation of privacy. And if a reporter were trailing you with a hot mic, then perhaps that reporter should seek consent as, of course, we would do.
Howard: Well it turned out that Project Veritas — it's come out just in the past 24, 48 hours — that apparently they were crashing parties, going away parties in a public venue, in a bar or restaurant near the Washington Post, and recording. The reporters there for the going away party were unaware of that. Now that would not be allowed in Massachusetts, is that correct?
Medwed: That's right. That would be a non-consensual interception of oral communications, and that's, to some extent, what this law is designed to protect against — that type of surreptitious eavesdropping.
Howard: Why do you think Project Veritas is targeting the Suffolk DA's office here in Massachusetts?
Medwed: You know, that's a great question. It's prospective. Project Veritas indicated in its complaint that it intends to quote unquote investigate activities in the Boston area. So in this lawsuit, it’s seeking what's called declaratory and injunctive relief: it wants the federal court to declare this law unconstitutional and to enjoin or stop the enforcement of this law in Suffolk County. So it's not that anything has happened yet in Boston, it's just that Project Veritas wants to do its work in Boston and it's worried about its potential exposure.
Howard: A lot of states do allow those sorts of recordings, and they're legal in other states. Is it possible that Project Veritas may have a case?
Medwed: It is possible, but quite unlikely because there is a division across the country. Some states are what's called one-party states — you don't have to have consent, just the person making the recording has to know about it. Other states, like Massachusetts, are two-party states, where both the recorder and the recordee have to be aware of it. So I think it's a question of state priorities, a question of state policy, and I very much doubt that the courts will reject this law.
Howard: OK, thanks so much for joining us, Daniel.
Medwed: Always a pleasure, Barbara.
Howard: That's Northeastern University law professor and WGBH News legal analyst Daniel Medwed.
