READ: Courtroom transcript documents fight over Massachusetts recording law

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BOSTON — A transcript of oral arguments exchanged in federal court last month regarding a lawsuit challenging Massachusetts’ two-party recording law has been released, and according to arguments from lawyers defending the Bay State, the law cannot be challenged as the plaintiff has yet to be prosecuted with a crime.  

Project Veritas Action Fund, the undercover guerilla journalism outfit whose secretly-recorded videos have most recently caught high-level Democrats outlining the strategy behind fomenting violent disruptions at President-elect Donald Trump’s campaign rallies, filed the lawsuit against Suffolk County District Attorney Daniel F. Conley last March.

Project Veritas attorneys elected to name Conley as the defendant as he would be the top prosecuting authority should the group attempt to conduct similar sting-style investigations in Boston, which is located inside Suffolk County. Project Veritas has said one of the stories it is looking to pursue involves surreptitiously recording conversations with local “slumlords.”

Text of the oral arguments and U.S. District Court Judge Patti B. Saris’s questioning and comments show she is well-aware of Project Veritas’s work and is not convinced of one tenet of the state’s argument — that the lawsuit lacks the proper jurisdiction as the company is based out-of-state.

Attorney Ryan E. Ferch, representing the state’s motion to dismiss the complaint, referenced Project Veritas’s “out-of-state” complaint several times and at one point claimed the distinction that” we’re dealing with out-of-state plaintiffs seeking facial invalidity of the entire statute.”

Saris, according to the transcript, questioned the logic.

“You keep saying that, but the New York Times is out of state,” Saris told Ferch. “They come in here all the time. I mean, with the Boston Marathon, you know, I had 500 media organizations here, 500. So people come in from out of state. They’re still journalists.”

State wiretapping laws call for fines of up to $10,000 and up to five years in prison for the crime of creating secret recordings. Attorneys representing Project Veritas have also pointed out to Saris that state laws even criminalize possession of undercover recording equipment.

At one point Ferch also cited the U.S. Supreme Court’s ruling on a case brought forward by the pro-life Susan B. Anthony List, which sought to pay for billboard space during an Ohio congressional race alleging that federal funds help pay for American abortions. After a federal judge in the Buckeye State ruled that federal funds are not being used to fund abortions. The Susan B Anthony List sued, arguing that their right to free speech had been diminished and found an ally in the American Civil Liberties Union.

Another federal judge dismissed the challenge, arguing that since Susan B. Anthony never erected the billboards and therefore was never charged with the crime the case lacked proper jurisdiction. The complaint later reached the Supreme Court, where justices decided unanimously that a “credible threat of enforcement” effectively harmed or chilled free speech.

Ferch argued however that “there needs to be something more” in terms of Project Veritas’s claim that the current Massachusetts recording law effectively chills attempts to produce undercover journalism.

“You have to have something more than a legal conclusion,” Ferch claimed.

Saris quickly interjected, according to the transcript.

“Have you seen these people?” Saris said, reference Project Veritas’s operational history. “I mean, they do this. I mean, this is not just some — they’re pretty prominent in doing this. I mean, I don’t disbelieve that they do it, do you?”

Ferch defended his position, claiming that the matter at hand involving Project Veritas  and a proposal to investigate Boston slumlords represents “an unarticulated story that may never come to pass.”

“They admit in their opposition they haven’t even sent somebody here, and yet they’re asking on the flip side this Court to strike down the entire state statute, having never been to Massachusetts, and articulating absolutely no steps that have been taken on the statute other than a business model,” Ferch added.

Saris asked whether Ferch and Attorney General Maura Healey’s office would feel differently if Project Veritas produced “an affidavit with a game plan.”

“I don’t buy the argument that you actually have to go in and violate the law before you have First Amendment standing,” Saris noted.

Virginia-based attorney Stephen Klein, representing Project Veritas, told Saris his clients rightly “have concerns about a felony statute.”

“I have concerns about conspiracy,” Klein added. “I have concerns about other inchoate defenses to come into Massachusetts.

“And particularly in the defendant’s final reply brief, there’s a certain attitude of, ‘Go be real, journalists, and then prove to us that doesn’t work, and then maybe you’ll have standing to challenge this.’”

According to coverage of the case appearing on the Project Veritas Action Fund website, Klein “expects the Massachusetts Attorney General will appeal the case to the First Circuit Court of Appeals” if Saris returns Project Veritas a favorable ruling on its motion for a preliminary injunction.

Klein added that Project Veritas Action Fund is prepared and is willing to fight to take the case to the Supreme Court.

Project Veritas Founder James O’Keefe said in a prepared statement that Massachusetts’ recording laws “protect and indemnify the guilty.”

“Our job is to shine the spotlight of truth to expose their dirty laundry,” O’Keefe added.

Read a copy of the Nov. 4 transcript:

Oral Arguments — Nov. 4 — Project Veritas V Conley et al by Evan on Scribd