Category: Alternative News

“Yesterday, Project Veritas Action Fund had oral arguments in the United States First Circuit Court of Appeals challenging the Constitutionality of Massachusetts’ anti-undercover recording laws (Project Veritas Action Fund v. Rollins).

Recall, a year ago, when PVA got the Federal District Court in Boston to rule unconstitutional a Massachusetts law prohibiting secret recordings; “[T]he Court holds that [Massachusetts law] may not Constitutionally prohibit the secret audio recording of government officials…”

Undercover recording is the sort of activity that is protected by the very essence of the First Amendment.

Yesterday, PVA sought an extension of the District Court Judge Patti Sarris’ decree so that it applies to private citizens when secretly recording in public.

This is not a left or right issue. This is a Constitutional issue about the public’s right to know.

After these oral arguments, PVA is confident that the case will be won, if not now, then at the United States Supreme Court.

Click here to watch the video from yesterday. This includes portions of the oral arguments and dialogue between with PVA’s attorney outside the Federal Court in Boston.

The courtroom was a wild experience.

In an extraordinary series of events, the ACLU filed a sister complaint, with some of their arguments dovetailing PVA’s.

The ACLU advocated in favor of affirming the District Court’s order regarding the ability to record police officers. ACLU’s staff filled up the courtroom.

Even Boston College law students crammed into the courtroom as they, or their professor, recognized the historic nature of the case as a tutorial of Constitutional law in practice. 

Law360 summarized the environment in the court yesterday:

“Inside a jam-packed seventh-floor courtroom, the panel seemed sympathetic to the solution crafted by U.S. District Judge Patti B. Saris, who in December 2018 declared Massachusetts’ blanket recording ban to be unconstitutional, allowing citizens to record government officials or police officers when they perform their duties in public.”

“U.S. Circuit Judges David J. Barron and Bruce M. Selya, along with retired U.S. Supreme Court Justice David H. Souter, sat on the panel.”

The Assistant Attorney General for the Commonwealth of Massachusetts was up against a panel of judges who were skeptical of the Commonwealth’s their inherently unconstitutional arguments:

“Boston’s district attorney, Rachael Rollins, has argued the ban should be restored and surreptitious recording of police and other officials could harm unwitting third parties. Judge Saris’ ruling is also problematic in that it leaves the definition of what constitutes a “government official” or “public space” to be determined in future cases, Rollins said.”

“Why isn’t that a sensible way to approach this type of problem?” U.S. Circuit Judge Bruce Selya asked. “You have a statute which sweeps very broadly, the district court finds, in certain of its important applications, it is unconstitutionally overbroad, so it attempts to set out some general benchmarks and recognizes, at the margins, there will have to be litigation.”

“I don’t know how you can expect a court to be more exact or precise in its decree,” Judge Selya told Assistant Attorney General Eric Haskell. “That’s what’s puzzling me.””

“Haskell said the police are currently running the risk of being recorded doing things in public that are of a more private nature, such as meeting with a confidential informant.”

“A meeting with a confidential informant, if it’s done in public, what’s wrong with that being recorded?” Judge Selya replied. “If the police officer wants that meeting to be truly confidential, it’s easy enough to hold it in private.”

Where the ACLU lawyer in oral arguments focused merely on the recording of police officers, whereas PVA was focused on the greater principles at stake, seeking an extension for the ability to record private citizens in the absence of an expectation of privacy, in furtherance of the public’s right to know and a more transparent society.

Arguing opposite the state were two unusual bedfellows: The Project Veritas Action Fund, founded by conservative provocateur James O’Keefe, and the American Civil Liberties Union of Massachusetts. Judge Saris chose to rule on both of their cases at once.

Here are a few exciting exchanges between PVA Attorney Ben Barr and Judges Barron and Selya, MA Assistant AG Eric Haskell, and former Associate Justice of the United States Supreme Court, David Souter, in yesterday’s historic proceedings:

Ben Barr: Massachusetts makes a mockery of the most effective form of newsgathering, undercover journalism, by denying citizens the right to be able to go out into public, and to be able to gather information in the most effective way possible, that is, secret audio recording.

Judge Barron: What do you mean by “public?”

Ben Barr: I mean a place in particular where there is no reasonable expectation of privacy.  It brings me to the truly exceptional nature of Section 99.

Judge Barron: Just so I get it straight with the idea that everybody in this courtroom right now would have a First Amendment right to record these proceedings?

Ben Barr: Yes.

Judge Barron: That’s your position?

Ben Barr: Yes.

Judge Barron: Do you have a narrower position?

[laughter among those present]

…

Judge Selya to MA Assistant Attorney General Eric Haskell: Meeting with a confidential informant, if it’s done in public, what’s wrong with that being recorded?  If the police officer wants that meeting to be truly confidential, the police officer can control where the meeting is held.  Easy enough to hold it in private.

Judge Selya to MA Assistant Attorney General Eric Haskell: You’re saying that if John Doe comes along, sees a police officer conversing with a politician, for example, they both have their backs turned to him, he holds out, in plain view of everybody, a tape recorder and turns it on, or a cell phone, and turns on the recording function, alright?  They have their backs turned, but it’s in plain view to anyone who wants to walk.  Everyone in the Boston Common sees it, except maybe the two people who were talking, and you’re saying that is, or isn’t, a violation of the statute?

(Ben Barr enters the Boston courthouse)

There were also conversations about the Constitutionality of prohibiting filming in public places when at least one person consents to being recorded:

Judge Selya: The Commonwealth has an interest in protecting the privacy of conversations. Everyone has some sort of right to the privacy of their conversations, full stop. And you can disagree with that as a matter of policy, but you’ve got to figure out why that’s wrong as a matter of Constitutional law…

Ben Barr: Primarily, it amounts to the tailoring and overbreadth issue, Judge Selya, while there is a legitimate governmental interest in protecting conversational privacy and 11 states have worked out test to do that. On the other end of the Constitutional equation is a right to be able to acquire information in public and report on that to the American people. So, being able to record a bribe occurring with a police officer on a…

Judge Selya: But Massachusetts is talking not only about governmental privacy, they’re talking about the privacy of all participants in these conversations, which typically take place between a government official and a private citizen.

Ben Barr: Yes, and actually as was noted by Judge Barron earlier, it is entirely capable that government officials and individuals are able to safeguard their own privacy. If they have a confidential conversation, or an informant, they’re able meet in a private place. We are not alleging the right to be able to invade doctors’ offices or police stations…

Judge Barron: Yeah, but you are saying that if I think that I’ve taken precautions, that I sometimes might sit on a bench in the park and speak in what I think is in pretty confidential tones with someone else, and you’re saying but I’m at risk of someone having a recording device, and if I didn’t notice it, that can then be sent all over the place, right?

Judge Selya: I want you to note that even in his hypotheticals, Judge Barron sees himself sitting on a bench.

(Laughter)

PVA argues that two-party consent laws prohibiting secretly recording people in public are outdated, unconstitutional, and prohibit/criminalize investigative reporting.

Think about it – recording devices are just sophisticated note-taking equipment. You have the right to write down what someone says after they’ve said it and broadcast it.

So, if an individual is in a public place, and they know they are being spoken to, PVA argues recordings should be allowed. Surely society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question.

A concealed tape recorder used by one party to record a conversation with who is present is not immoral, it’s not invasive, it’s not eavesdropping.

Unlike forty-nine other states, Massachusetts’ law simply bans all secret audio recording.

Thirty-nine states believe that the individual has the ability to secure the privacy of their own conversations while also protecting First Amendment rights.

Eleven states believe it is the legislature’s responsibility to provide some level of privacy. These eleven states have figured out standards that respect both the First Amendment and privacy concerns—so Massachusetts shouldn’t be allowed to simply disregard news-gathering rights protected by the First Amendment and make it a crime to conduct all undercover recording.

And this is why PVA has asked that the First Circuit Court of Appeals strike down the law ‘facially’, (to declaring it entirely void.)

The Associated Press issued a wire story covering the historic day:

According to Courthouse News, “Benjamin T. Barr, special counsel for Project Veritas, told the Boston-based First Circuit on Wednesday that the law in Massachusetts is the most restrictive in the country. Some 38 states have few if any limits on secret recordings and the rest have carefully tailored restrictions, he said.”

From PVA’s attorney, Ben Barr’s, observation of the oral argument, it appeared that all of the judges (including former US Supreme Court Associate Justice, David Souter) expressed real skepticism about the Constitutionality of the Massachusetts law—referring to it as “sweeping too broadly” in several of their questions.

Their lines of questioning examined the state’s interest in securing privacy against the means the state employs to secure that privacy. In this case, an outright ban is simply too suppressive of speech and narrower tools could be used to protect truly private conversations.

The judges also hinted that individuals were free to guard their own privacy—such as removing a discussion to a truly private place—instead of needing a law that simply prohibits news-gathering of items disclosed in public.

(Attorney Ben Barr sits at forefront waiting to respond, while Massachusetts Assistant AG makes his argument before the panel of three.)

After the hearing, PVA’s attorney Ben Barr said:

“We were pleased that the court held the Commonwealth of Massachusetts to accountability. This law is an outright ban on the most effective form of newsgathering—undercover journalism—and deprives the public of important information. It is difficult to imagine it surviving today’s review before the First Circuit.” 

“If the First Amendment means anything, it means that citizens possess the power to hold accountable those in power. In 2020, using smartphones and digital recording devices to uncover political hypocrisy and self-dealing is the most effective means to do so and should be protected by the First Amendment.”

A ruling is anticipated by mid-Summer.

PVA has fought the law in front of a panel of three and after yesterday, there is confidence that a victory will be achieved.

It may be a while and it may sometimes feel like we may not have many allies. But we’re going to continue fighting these anti-secret recording laws on principle because it’s the right and just thing to do, even if it means being first and even if it means fighting alone.

Onward,

James”

MAJOR UPDATE: US CONFIDENT UKRAINIAN PLANE WAS SHOT DOWN IN IRAN! – Plane Has Shrapnel Damage on Wings and Fuselage — PHOTOS

BREAKING REPORT — IRAN ROUNDUP for January 4th thru 9th – General Soleimani was betrayed by fellow IRGC members!

In case people didn’t see it – https://t.co/1Oj4CRPBek pic.twitter.com/HVrbDthXP3

— HYVE (@HYVEE7) January 9, 2020

Just in case you don't know, EAST is the Golden Gate to the Heavens of Mankind. The WEST is the Silver Gate to the Underworld. This is shown on the Vatican Holy See. pic.twitter.com/NjTqmCf3Fb

— Adam Foreman (@adamlforeman) January 9, 2020

Buried: Justin Trudeau's Brother Alexandre Worked For IRANIAN Government https://t.co/lOBY9f6iLh

— Mr Frank McVeety (@Franktmcveety) January 10, 2020

Meadows: This is a sad day. And yet, here we are having another speech to try to take on the President of the US for actually taking out a terrorist. I would ask my colleagues [the Democrats]: how many Americans does a terrorist have to kill before they join with us? 🔥 pic.twitter.com/y5jNU2HuMZ

— Wojciech Pawelczyk 🇵🇱🇺🇸 (@PolishPatriotTM) January 9, 2020

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