Last week, in Martin v. Gross, Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of our clients, finding the Massachusetts Wiretap Statute (Mass. Gen. L. ch. 272, § 99) unconstitutional when applied to secret recordings of government officials performing their duties in public. The decision is significant for its clarification of protections under the First Amendment.
The Massachusetts Wiretap Statute makes it a felony to “secretly” record oral communications writ large, regardless of the other circumstances of the recording. Our clients—two civil-rights activists in Boston and the plaintiffs in this case—challenged the Massachusetts Wiretap Statute as unconstitutional under the First Amendment as applied to secret recordings of police officers performing their duties in public. While both plaintiffs have openly recorded law enforcement officials performing their duties in public, both believe secret recording would protect their safety and more accurately document officials’ behavior in public.