Judge allows suits against state ban on recording private conversations to continue

In decisions issued last week and today, a federal judge allowed lawsuits questioning the constitutionality of a Massachusetts ban on recording "private" discussions to go forward - but said the state has a legitimate stake in protecting the privacy rights of its citizens.

US District Court Judge Patti Saris is hearing two separate but similar cases at the Moakley Courthouse, both against Suffolk County District Attorney Dan Conley, which pit the First Amendment against privacy provisions of a state law.

In one case, which also names Boston Police Commissioner William Evans, two Boston civil-rights activists are suing to be allowed to record Boston police officers on the job.

In the other case, rightwing provocateur James O'Keefe claims he wants to do undercover recording of scummy landlords stuffing colleges students into unsafe apartments - and to investigate alleged wrongdoing among unspecified "public officials."

Federal judges have upheld the public's right to video public employees at work in public spaces, but at issue in the two case is recording not just what they do but what they say, because of a state law that prohibits such "wiretapping." O'Keefe's case also adds the issue of private citizens.

In a ruling today on O'Keefe's suit, Saris rejected a request by Conley to simply toss the suit, saying O'Keefe presented enough of a valid case that his First Amendment rights were being harmed to warrant court consideration. But she rejected O'Keefe's request to let him and his workers do surreptitious recording while the suit progresses because of privacy issues:

The Court holds that Project Veritas survives the standing challenge with respect to its claim that the state prohibition of the secret recording of private individuals violates the First Amendment. However, the Court holds that Section 99's ban on the secret recording of conversations by private individuals does not violate the First Amendment because the statute is narrowly tailored to promote the significant governmental interest of protecting the conversational privacy of Massachusetts residents.

Sarris wrote that even in public, people sometimes have a right to at least some minimal privacy:

Individuals have conversations they intend to be private, in public spaces, where they may be overheard, all the time –- they meet at restaurants and coffee shops, talk with co-workers on the walk to lunch, gossip with friends on the subway, and talk too loudly at holiday parties or in restaurant booths. These types of conversations are ones where one might expect to be overheard, but not recorded and broadcast. There is a significant privacy difference between overhearing a conversation in an area with no reasonable expectation of privacy and recording and replaying that conversation for all to hear.