State law banning secret recording faces court challenge

Printed from:

BOSTON Project Veritas, a guerilla journalism group known for taking undercover videos focusing a conservative eye on topics ranging from vote fraud to Common Core educational standards, sued in federal court to upend a Massachusetts law that bans most surreptitious recording.

The group, led by James O’Keefe, named Suffolk County District Attorney Dan Conley in its complaint, which claims that the state law is unconstitutional by making it a crime to secretly record another individual without their consent. The group says the state law violates its First Amendment rights as a journalism organization.

Project Veritas named Conley as a defendant, citing his “power to prosecute for illegal interception of oral communications that occurs within the office’s jurisdiction.” Suffolk County covers all of Boston.

Jake Wark, a Conley spokesman, said the prosecutor had yet to be served with official copies of the complaint and couldn’t comment. Court documents indicate the lawsuit was filed Friday in U.S. District Court in Boston.

A Project Veritas spokesman said O’Keefe was away from the group’s Mamaroneck, New York, office and couldn’t comment immediately.

Massachusetts law provides civil and criminal penalties, including imprisonment, for violating the law regarding unauthorized recordings, including with hidden cameras, according to the Reporters Committee for Freedom of the Press in Arlington, Virginia. The statute has been on the books since before 1968, and hasn’t impinged on the vigorous, sometimes Pulitzer-prize winning reporting by the state’s many news organizations.

In January, Project Veritas began releasing a series of videos, all filmed in California, that took aim at textbook publishers, including Boston-based industry giant Houghton Mifflin Harcourt. Using its trademark undercover recording technique, the group highlighted conversations between its operatives and publishing company employees to suggest that publishers have encouraged adoption of Common Core by school departments nationwide as a way to inflate revenue.

In one, Dianne Barrow, described as a West Coast accounts manager for Houghton, is shown saying that textbook publishers are more interested in money than improving education. Additional videos depict other publishing employees describing national Common Core education standards as nothing but a scheme to sell more of their companies’ products.

The lawsuit coincides with a brewing battle over the post-2010 adoption of Common Core standards by Massachusetts education policy makers. An initiative petition that would let voters decide whether to reject Common Core has received more than enough signatures to appear on the November ballot, prompting lawmakers to take another look at the issue this week.

But the initiative faces a court challenge from Common Core supporters, who have sued to keep the measure off the ballot. The bid is being financed by the Massachusetts Business Alliance for Education, which is heavily funded by the Bill and Melinda Gates Foundation, fueled by the Microsoft co-founder.

As for the Project Veritas lawsuit, the group is challenging the constitutional merits of Massachusetts recording laws and does not refer to Common Core, saying it “would like to investigate the recently reported instances of landlords taking advantage of housing shortages in Boston where students may live in unsafe and dilapidated conditions.”

A city ordinance adopted in 2008 bars more than four undergraduate students from living in the same apartment. Another requires schools in the city to inform housing inspectors of where their students live off campus, according to the Massachusetts Real Estate Law Blog

O’Keefe’s group also said it “would like to investigate the trustworthiness and accountability of government officials, including police officers, in a variety of public and nonpublic settings,” in its lawsuit.

The organization also refers to videos it produced during last month’s New Hampshire presidential primary elections, specifically instances in which various poll workers offer instructions on how to exploit the state’s weak residency requirements to become a registered voter. One video prompted the state attorney general to open an investigation.

“Undercover investigative journalism employing surreptitious recording is the sole method through which PVA is able to uncover newsworthy matters concerning government fraud, abuses in the political process and other areas of public concern,” the organization says in the complaint, referring to itself by an acronym. “The public’s interest in being informed about such matters outweighs the government’s interest in prohibiting all surreptitious newsgathering.”

O’Keefe’s group said it “would like to undertake undercover investigation of public issues in Boston and throughout Massachusetts, including: (1) public officials acting in public spaces (case law only protects recording police officers); (2) public officials in places with no expectation of privacy; and (3) private individuals in places with no expectation of privacy.”