Petition for Writ of Certiorari — Project Veritas Action Fund, Petitioner v. Rachael S. Rollins, in Her Official Capacity as District Attorney for Suffolk County, Massachusetts

No. _________

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------PROJECT VERITAS ACTION FUND,

Petitioner,

v.

RACHAEL S. ROLLINS, in her official capacity as

District Attorney for Suffolk County, Massachusetts,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------♦--------------------------------BENJAMIN BARR*

*Counsel of Record

BARR & KLEIN PLLC

444 N. Michigan Ave.

Ste. 1200

Chicago, IL 60611

Telephone: (202) 595-4671

ben@barrklein.com

STEPHEN R. KLEIN

BARR & KLEIN PLLC

1629 K St. NW

Ste. 300

Washington, DC 20006

Telephone: (202) 804-6676

steve@barrklein.com

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Massachusetts law prohibits all secret recording

of oral communications by anyone who is not a law

enforcement officer. This does great damage to an irreplaceable and important form of newsgathering. Project Veritas Action Fund regularly uses secret audio

recording to capture newsworthy information and report it to the public. Realizing Massachusetts law

banned it from operating in the state, Project Veritas

Action Fund challenged the reach of Massachusetts

General Laws chapter 272, section 99. After acknowledging Project Veritas Action Fund would make the secret recordings detailed in the case but for the law, the

panel below ruled the law was not facially overbroad

and determined the as-applied challenges were unripe

and presented no live case or controversy.

The questions presented are:

1.

Whether the First Circuit erred in holding—

in direct conflict with the Illinois Supreme

Court and in conflict with four other circuit

courts of appeals—that a recording law which

makes it a felony for individuals to secretly

record under any circumstances is not facially

overbroad under the First Amendment.

2.

Whether the First Circuit erred in holding—

in direct conflict with five other circuit courts

of appeals—that a party challenging a speechsuppressive law has the burden to precisely

articulate every type of contemplated speech

activity to satisfy ripeness for as-applied challenges.

ii

PARTIES TO THE PROCEEDING

Petitioner is: Project Veritas Action Fund.

Respondent is: Rachael S. Rollins, in her official

capacity as District Attorney for Suffolk County, Massachusetts.*

Other parties to the proceeding in the First Circuit

Court of Appeals were: Plaintiffs K. Eric Martin and

René Pérez, and Defendant William G. Gross, in his official capacity as Police Commissioner for the City of

Boston.

CORPORATE DISCLOSURE STATEMENT

Project Veritas Action Fund has no parent corporation and no publicly held company owns 10% or more

of its stock.

RELATED PROCEEDINGS

The proceedings in federal district and appellate

courts identified below are directly related to the

above-captioned case in this Court:

Project Veritas Action Fund v. Conley, No. 1610462-PBS, 244 F. Supp. 3d 256 (D. Mass.

Mar. 23, 2017).

* Respondent Rollins became Suffolk County District Attorney on January 2, 2019. Her predecessor, Daniel F. Conley, was

named as defendant in his official capacity in the district court.

iii

RELATED PROCEEDINGS—Continued

Martin v. Gross, Nos. 16-11362-PBS & 1610462-PBS, 340 F. Supp. 3d 87 (D. Mass. Dec.

10, 2018).

Martin v. Gross, Nos. 16-11362-PBS & 1610462-PBS, 380 F. Supp. 3d 169 (D. Mass. May

22, 2019).

Project Veritas Action Fund v. Rollins, Nos. 191586, 19-1640 & 19-1629, 982 F.3d 813 (1st

Cir. Dec. 15, 2020).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING ......................

ii

CORPORATE DISCLOSURE STATEMENT ......

ii

RELATED PROCEEDINGS ................................

ii

TABLE OF CONTENTS ......................................

iv

TABLE OF AUTHORITIES ................................. viii

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS ...........................................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE .............................................

2

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

4

A.

B.

Factual Background ..................................

4

1. The Massachusetts Interception Statute ........................................................

4

2. The Petitioner ......................................

5

Legal Background ......................................

8

1. The District Court Proceedings ...........

8

2. The First Circuit’s Panel Decision ......

9

REASONS FOR GRANTING THE PETITION ..... 11

I.

Certiorari Should Be Granted to Resolve

Conflicts Regarding the First Amendment

Overbreadth Doctrine ................................ 11

v

TABLE OF CONTENTS—Continued

Page

A. There Exists a Direct Conflict Between the First Circuit and the Illinois

Supreme Court as to Whether an Unequivocal Ban of Secret Recording is

Overbroad ............................................ 11

B. The First Circuit’s Overbreadth Doctrine Imposes an Insolvable Constitutional Calculus and is in Conflict with

Four Other Circuits ............................. 17

II.

Certiorari Should Be Granted to Resolve a

Conflict Between the Circuits over Ripeness Standards Governing As-Applied,

Pre-Enforcement First Amendment Challenges ......................................................... 22

A. The Evidence Supporting Review Was

Clear Cut, Concrete, and Congruent to

the Relief Requested ............................ 26

1. PVA Offered Detailed Plans for

Newsgathering................................ 26

2. PVA’s As-Applied Claims are Ripe

Under This Court’s Standards ....... 29

B. The First Circuit’s Holding Directly

Conflicts with the Second, Fourth, Sixth,

Seventh, and Tenth Circuit Courts of

Appeals ................................................ 32

1. Three Other Circuits Would Find

This Controversy Ripe .................... 32

vi

TABLE OF CONTENTS—Continued

Page

2. On Remarkably Similar Facts, the

Seventh and Fourth Circuits Found

Recording Challenges Justiciable .... 34

C. The First Circuit’s Departure from Ripeness Determinations in First Amendment Cases Necessitates Review ........ 37

CONCLUSION..................................................... 40

APPENDIX

APPENDIX A

Opinion, U.S. Court of Appeals for the First Circuit, filed December 15, 2020 ........................... App. 1

APPENDIX B

Memorandum Decision and Order Re: Declaratory Judgment, U.S. District Court for the District of Massachusetts, filed May 22, 2019 .... App. 68

APPENDIX C

Memorandum Decision and Order Re: Motion

for Summary Judgment, U.S. District Court

for the District of Massachusetts, filed December 10, 2018 .................................................... App. 78

APPENDIX D

Memorandum Decision and Order Re: Plaintiff ’s Motion for Preliminary Injunction and

Defendant’s Motion to Dismiss, U.S. District

Court for the District of Massachusetts, filed

March 23, 2017 ............................................. App. 120

APPENDIX E

Mass. Gen. Laws c. 272, § 99 ........................... App. 138

vii

TABLE OF CONTENTS—Continued

Page

APPENDIX F

Second Amended Complaint for Declaratory and

Injunctive Relief, U.S. District Court for the

District of Massachusetts, filed September 29,

2017 .............................................................. App. 165

viii

TABLE OF AUTHORITIES

Page

CASES

Am. Civil Liberties Union of Illinois v. Alvarez,

679 F.3d 583 (7th Cir. 2012) ...................... 13, 34, 35

Animal Legal Defense Fund v. Herbert, 263

F. Supp. 3d 1193 (D. Utah 2017).............................37

Animal Legal Defense Fund v. Kelly, 434

F. Supp. 3d 974 (D. Kan. 2020) ...............................37

Animal Legal Defense Fund v. Reynolds, 297

F. Supp. 3d 901 (S.D. Iowa 2018) ............................37

Ashcroft v. Free Speech Coal., 535 U.S. 234

(2002) ............................................... 16, 19, 20, 21, 22

Associated Press v. U.S., 326 U.S. 1 (1945) ...................3

Babbitt v. United Farm Workers Nat’l Union, 442

U.S. 289 (1979) ...................................... 24, 25, 29, 38

Bartnicki v. Vopper, 532 U.S. 514 (2001) ................ 3, 15

Bates v. State Bar of Arizona, 433 U.S. 350

(1977).................................................................... 24

Bell v. Keating, 697 F.3d 445 (7th Cir. 2012) ..............20

Board of Airport Commissioners of City of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569

(1987) ........................................................... 17, 21, 31

Citizens United v. Fed. Election Comm’n, 558

U.S. 310 (2010) .................................................. 14, 18

Com. v. Hyde, 750 N.E.2d 963 (Mass. 2001) ...... 5, 12, 30

Com. v. Manzelli, 864 N.E.2d 566 (Mass. App. Ct.

2007) ..................................................................... 30

ix

TABLE OF AUTHORITIES—Continued

Page

Connection Distributing Co. v. Holder, 557 F.3d

321 (6th Cir. 2009) ...................................................21

Fed. Election Comm’n v. Wisconsin Right to Life,

Inc., 551 U.S. 449 (2007).............................. 23, 31, 37

Free Speech Coalition, Inc. v. Attorney General,

U.S., 787 F.3d 142 (3d Cir. 2015) .............................20

Grayned v. City of Rockford, 408 U.S. 104

(1972) ...................................................................31

Holder v. Humanitarian Law Project, 561 U.S. 1

(2010) ................................................................. 25, 38

Initiative and Referendum Institute v. Walker,

450 F.3d 1082 (10th Cir. 2006) ................................33

Johnson v. Frei, 103 N.E.3d 1239, 2018 WL

2223654 (Mass. App. Ct. 2018) ...............................31

Katz v. U.S., 389 U.S. 347 (1967) ................................15

Lexmark Int’l, Inc. v. Static Control Components,

Inc., 572 U.S. 118 (2014)..........................................24

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) .......................................................................32

Martin v. Evans, 241 F. Supp. 3d 276 (D. Mass.

2017) ..........................................................................8

Martin v. Gross, 340 F. Supp. 3d 87 (D. Mass.

2018) ..........................................................................1

Martin v. Gross, 380 F. Supp. 3d 169 (D. Mass.

2019) ..........................................................................1

McCauley v. University of the Virgin Islands, 618

F.3d 232 (3d Cir. 2010) ............................................20

x

TABLE OF AUTHORITIES—Continued

Page

Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) ..................17

Nat’l Organization for Marriage, Inc. v. Walsh,

714 F.3d 682 (2d Cir. 2013) .......................... 24, 33

New Mexicans for Bill Richardson v. Gonzales,

64 F.3d 1495 (10th Cir. 1995) ............................ 32, 33

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) .......................................................................31

Ohio Civil Rights Comm’n v. Dayton Christian

Schools, Inc., 477 U.S. 619 (1986) ...........................24

People for the Ethical Treatment of Animals, Inc.

v. Stein, 737 Fed. Appx. 122 (4th Cir. 2018)............36

People v. Clark, 6 N.E.3d 154 (Ill. 2014) ... 11, 12, 13, 14, 15

Project Veritas Action Fund v. Conley, 244

F. Supp. 3d 256 (D. Mass. 2017) ...............................1

Project Veritas Action Fund v. Rollins, 982 F.3d

813 (1st Cir. 2020) .....................................................1

Railway Mail Assn. v. Corsi, 326 U.S. 88 (1945) ........24

Reno v. Catholic Social Services, Inc., 509 U.S.

43 (1993) ............................................................... 24

Speet v. Schuette, 726 F.3d 867 (6th Cir. 2013) ..........20

Summers v. Earth Island Institute, 555 U.S. 488

(2009) .......................................................................23

Susan B. Anthony List v. Driehaus, 573 U.S. 149

(2014) ............................................................... passim

xi

TABLE OF AUTHORITIES—Continued

Page

Thomas v. Union Carbide Agr. Products Co., 473

U.S. 568 (1985) ........................................................30

Thornhill v. Alabama, 310 U.S. 88 (1940) ..................18

Time, Inc. v. Hill, 385 U.S. 374 (1967) ........................16

Turner Broadcasting System, Inc. v. Federal Communications Comm’n, 520 U.S. 180 (1997) .............12

U.S. v. Stevens, 559 U.S. 460 (2010) ...................... 16, 39

U.S. v. White, 401 U.S. 745 (1971) ...............................15

Village of Schaumburg v. Citizens for a Better

Environment, 444 U.S. 620 (1980) ..... 17, 19, 20, 22

Ways v. City of Lincoln, Neb., 274 F.3d 514 (8th

Cir. 2001) .................................................................20

Winter v. Wolnitzek, 834 F.3d 681 (6th Cir.

2016) .............................................................. 23, 34

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. I ....................................... passim

U.S. CONST. amend. XIV, § 1 .................................. 2, 8

STATUTES

18 U.S.C. § 2510(2) ........................................................5

18 U.S.C. § 2511(2)(d) ...................................................5

28 U.S.C. § 1254(1) ........................................................2

28 U.S.C. § 1331 ............................................................1

42 U.S.C. § 1983 ............................................................1

xii

TABLE OF AUTHORITIES—Continued

Page

720 ILCS 5/14-1(d) (2010) ..........................................11

Mass. Gen Laws. c. 272, § 99 .............................. passim

OTHER AUTHORITIES

Biography of a Bookie Joint, YOUTUBE, Oct. 31,

2015, https://youtu.be/7kAMVa3uMwo?t=1082 ........5

Henry P. Monaghan, First Amendment “Due

Process,” 83 HARV. L. REV. 518 (1970) ....................34

Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853 (1991) ..........................18

Rick Pearson & Bill Ruthhart, Was rally violence

provoked?, CHICAGO TRIB., Oct. 20, 2016...................7

FEDERAL PRACTICE AND PROCEDURE § 3532.3 ..............34

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Project Veritas Action Fund (“PVA”) respectfully petitions this Court for a Writ of Certiorari

to review the judgment of the United States Court of

Appeals for the First Circuit.

---------------------------------♦---------------------------------

OPINIONS

The panel opinion of the Court of Appeals is published at 982 F.3d 813 (1st Cir. 2020) and included in

Petitioner’s Appendix (“App.”) at 1. The relevant decisions of the district court are published at Martin v.

Gross, 380 F. Supp. 3d 169 (D. Mass. 2019), Martin v.

Gross, 340 F. Supp. 3d 87 (D. Mass. 2018) and Project

Veritas Action Fund v. Conley, 244 F. Supp. 3d 256 (D.

Mass. 2017) and included at App. 68, App. 78, and App.

120, respectively.

---------------------------------♦---------------------------------

JURISDICTION

The district court had jurisdiction over this case

under 28 U.S.C. § 1331 and 42 U.S.C. § 1983. It granted

the defendant’s motion to dismiss PVA’s facial challenge and one of its as-applied challenges on March 23,

2017 and entered declaratory judgment on PVA’s remaining as-applied challenge on May 22, 2019. App.

120; App. 68. PVA filed a timely appeal to the First Circuit, and Suffolk County District Attorney Rachael

Rollins filed a timely cross-appeal. On December 15,

2020, a panel of the First Circuit affirmed the district

2

court’s dismissal of PVA’s facial challenge, affirmed dismissal of one of PVA’s as-applied challenges and reversed the district court’s as-applied ruling in favor of

PVA. App. 57–67. This Court has jurisdiction under 28

U.S.C. § 1254(1).

---------------------------------♦---------------------------------

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

The First Amendment to the U.S. Constitution

provides, in relevant part, “Congress shall make no law

. . . abridging the freedom of speech, or of the press[.]”

U.S. CONST. amend. I. The Fourteenth Amendment to

the U.S. Constitution provides, in relevant part, that

“No State shall . . . deprive any person of life, liberty,

or property, without due process of law[.]” U.S. CONST.

amend. XIV, § 1.

Massachusetts General Laws, chapter 272, section

99 is reprinted in the appendix to this petition. App.

138–164.

---------------------------------♦---------------------------------

INTRODUCTION

The First Circuit ruled that Massachusetts General Laws, chapter 272, section 99 (“Section 99”), which

threatens anyone other than a law enforcement officer

with five years of imprisonment and a $10,000 fine

for secretly recording anyone else’s speech under any

circumstances, is constitutional except for secretly

3

recording law enforcement officers engaged in their

duties in public spaces. Consequently, individuals who

secretly record oral communications under any other

circumstances in Massachusetts commit a felony. Felonious acts include newsgathering protected at the core

of the First Amendment, like secretly recording public

events—such as a public speech, or a protest—or in a

public forum. In short, any oral communications that

PVA journalists would secretly record except for those

of police are felonies.

The first issue presented is whether Section 99 is

facially overbroad. This Court has never addressed the

First Amendment implications of secret audio recording of oral communications by individuals, an activity

that is an exercise of free speech and the free press. It

has held that the First Amendment protects the “widest possible dissemination of information” as “essential

to the welfare of the public. . . .” Associated Press v.

U.S., 326 U.S. 1, 20 (1945). Moreover, this Court has

frequently rejected censorship enacted in the name of

privacy and has ruled that the subsequent receipt and

publication of certain illegal wiretaps by third parties—recordings made via bona fide eavesdropping

onto private communications—are protected by the

First Amendment over governmental interests in privacy. Bartnicki v. Vopper, 532 U.S. 514, 535 (2001). So,

too, does the First Amendment prevail over restrictive

laws that directly prohibit the secret audio recording

of speech outside of any legitimate definition of privacy.

More fundamentally, this case presents a substantial

contradiction between circuit courts of appeals as to the

4

application of the overbreadth doctrine with the First

Circuit placing abnormal burdens on speakers who allege overbreadth.

Combined with its ruling on overbreadth, the First

Circuit’s as-applied holdings effectively insulate Section 99 from judicial review. PVA provided a detailed

complaint and assembled an extensive evidentiary record detailing its plans to secretly record but for Section

99 and otherwise presented a clear-cut and concrete

constitutional challenge. But the First Circuit found

the challenge too speculative to survive ripeness concerns. This is in conflict with five other circuits—with

two finding ripeness on nearly identical facts in preenforcement, First Amendment challenges.

Parties facing speech-suppressive laws in the

First Circuit are blocked by unworkable ripeness and

overbreadth standards that conflict with other circuits.

This petition should be granted to clarify these standards and preserve First Amendment rights.

---------------------------------♦---------------------------------

STATEMENT OF THE CASE

A. Factual Background

1. The Massachusetts Interception Statute

Since 1968, Massachusetts law has prohibited the

interception, or secret recording, of oral communications by anyone but law enforcement. Mass. Gen. Laws

ch. 272, § 99 (App. 138). Violation is a felony, outlawing

a method of newsgathering that pre-dated the law’s

5

enactment and endures elsewhere. App. 143; see Biography of a Bookie Joint, YOUTUBE, Oct. 31, 2015,

https://youtu.be/7kAMVa3uMwo?t=1082 (1962 CBS Massachusetts rebroadcast). The Supreme Judicial Court

of Massachusetts affirmed that under Section 99

“[s]ecret tape recording by private individuals has

been unequivocally banned[.]” Com. v. Hyde, 750 N.E.2d

963, 971 (Mass. 2001).

Section 99 is more restrictive than any other law

in the country governing audio recording of communications. Most state laws and federal law permit anyone

to secretly record oral communications to which they

are a party. See, e.g., 18 U.S.C. § 2511(2)(d). At the very

least, other regimes limit their prohibitions to oral

communications uttered by a person in circumstances

with a reasonable expectation of privacy, or with a reasonable expectation that their communications are not

subject to interception. See, e.g., 18 U.S.C. § 2510(2).

2. The Petitioner

PVA is a national media organization on the forefront of undercover investigative journalism. App. 166.

Its newsgathering techniques involve secretly recording speech, or intercepting oral communications as defined in Section 99. App. 139, 169. Secret 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.” App. 175.

6

Since its founding in 2014, PVA has published numerous news reports with oral communications that

were intercepted by its journalists as they conversed

with subjects during investigations of, among other

things, political campaigns and electoral integrity. App.

171–172. In 2016, PVA published an investigation that

exposed ties between a presidential campaign and political consultants who endeavored to make protests

coordinated with a political party appear to be grassroots activity and even aimed to provoke violence. App.

173. This report featured secretly recorded statements

from political consultants who would not have spoken

as candidly if they were aware of the recording. See id.

One person, a contractor for the Democratic National

Committee, described his method as follows:

So if we do a protest and if it’s branded a DNC

protest, right away the press is going to say

“partisan.” But if I’m in there coordinating

with all the groups on the ground and sort of

playing field general but they are the ones

talking to the cameras, then it’s actually people. But if we send out press advisories with

DNC on them and Clinton campaign it doesn’t

have the same effect.

Id. (linked video at 09:50-10:14). Another consultant

summarized the motive behind planting political operatives at the opponent’s rallies:

If you’re there and you’re protesting and you

do these actions, you will be attacked at

Trump rallies. That’s what we want. . . . The

whole point of it is we know Trump’s people

7

will freak the [expletive] out, his security

team will freak out, and his supporters will

lose their [expletive].

Id. (linked video at 02:19-02:43). This report garnered

millions of views on YouTube alone, and was excerpted

in news outlets nationwide. See, e.g., Rick Pearson &

Bill Ruthhart, Was rally violence provoked?, CHICAGO

TRIB., Oct. 20, 2016, at 6.

PVA has continued to investigate ties between political operations, public protests, and violence, particularly focusing on the activities of “Antifa,” or the socalled “anti-fascism” movement. App. 173–174. A PVA

journalist attended the infamous rally in Charlottesville,

Virginia on August 12, 2017, and secretly recorded at

the rally before, during and after the murder that occurred that day. Id. On August 19, 2017, just one week

later, PVA journalists would have attended a rally in

downtown Boston but did not because of the ban in

Section 99. App. 174; App. 19. PVA would attend future

events of this nature in Suffolk County, Massachusetts

to continue this investigation. App. 174. It would also

undertake a number of other investigations in Massachusetts but for Section 99. App. 175–176; see also App.

18–19.

As was pled repeatedly below and evinced in an

extensive factual record, but for Section 99 PVA journalists would intercept oral communications in Massachusetts by secretly recording the speech of public

officials in situations with no expectation of privacy,

private individuals in situations with no reasonable

8

expectation of privacy, and of public officials engaging

in public duties in public places. App. 175–176.

B. Legal Background

1. The District Court Proceedings

Facing unequivocal censorship of its most effective

means of newsgathering, PVA brought suit seeking

declaratory and injunctive relief against the Suffolk

County District Attorney. 1JRA16.1 PVA sought to halt

enforcement of Section 99 because it violates the rights

to free speech and free press under the First and Fourteenth Amendments facially and as applied. App. 176–

180.2 PVA also prayed for “[a]ny other relief that the

Court deems just and appropriate.” App. 180.

About four months later, two civil rights activists,

K. Eric Martin and René Pérez, filed a separate suit

challenging Section 99 as unconstitutional as applied

strictly to recording police officers engaged in their official duties while in public places. 2JRA737; see Martin v. Evans, 241 F. Supp. 3d 276, 297, 286–88 (D. Mass.

2017).

1

“JRA” refers to the Joint Record Appendix in the First Cir-

cuit.

PVA filed its suit on March 4, 2016. 1JRA16. Its amended

complaints added details of investigations it could not undertake

and honed PVA’s challenge to the secret recording of government

officials engaged in their duties in a public place. See App. 125–

128. Thus, only the most recent complaint is necessary and included in the appendix. App. 165.

2

9

The district court dismissed PVA’s claims that

Section 99 is facially overbroad or that it is unconstitutional as applied to recording in situations with no

reasonable expectation of privacy. App. 128–137. At

summary judgment, PVA’s suit and the Martin suit

were consolidated. App. 78. The court ruled that Section 99 is unconstitutional as applied to the secret recording of government officials performing their duties

in public spaces. App. 118.

2. The First Circuit’s Panel Decision

This suit and Martin were consolidated on appeal.

App. 1. The First Circuit understood the breadth of

Section 99 by virtue of its text and interpretations of

the Massachusetts Supreme Judicial Court. App. 6–11.

The court noted the oral communications that the

plaintiffs would intercept but for Section 99. App. 11–

12, 18–19. After finding the Martin plaintiffs’ claim to

be ripe, the court addressed its merits, and found that

secret audio recording implicates the First Amendment. App. 41. The court found Section 99 to be content

neutral, and also considered its tailoring related to individual privacy. App. 48–51. It discussed this strictly

in relation to secretly recording law enforcement officers and those in their vicinity. App. 51–57. “[A]n individual’s privacy interests are hardly at their zenith in

speaking audibly in a public space within earshot of a

police officer.” App. 55. The court unanimously affirmed

the district court’s decision for the Martin plaintiffs.

App. 57.

10

The panel ruled that “[PVA] . . . has adequately

shown that it has refrained from some secret recording that it would undertake but for Section 99’s

bar[.]” App. 58. The court then upheld Section 99

against PVA’s overbreadth challenge. App. 58–59,

135–137. PVA named a number of examples of unconstitutional application, but the court found that

these were not “ ‘substantial’ relative to the extensive range of applications [PVA] does not even challenge.” App. 59.

The court then ruled that PVA’s as-applied challenges were unripe, after reiterating that “but for

Section 99, [PVA] would engage in the investigations

it describes itself as intending to undertake.” App. 59–

65. It dismissed PVA’s as-applied challenge arguing

that Section 99 is unconstitutional as applied to the

secret recording of individuals who lack a reasonable

expectation of privacy, ruling that this claim was vague

and not congruent to PVA’s investigations. App. 61–

63. The court similarly rejected PVA’s challenge to

Section 99 as applied to the secret recording of government officials engaged in their duties in public

places because “[PVA] gives no indication that it intends to investigate every type of civil servant” and

suggested that public officials’ duties have different

levels of privacy. App. 63–65; but see App. 175–176.

After years of litigation, an extensive evidentiary record, and repeated acknowledgement by the First Circuit that PVA would undertake secret recording in

Boston in a variety of investigations, the court found

11

no live case or controversy in this matter for PVA’s asapplied challenges. App. 65.

---------------------------------♦---------------------------------

REASONS FOR GRANTING THE PETITION

I.

Certiorari Should Be Granted to Resolve

Conflicts Regarding the First Amendment

Overbreadth Doctrine

A. There Exists a Direct Conflict Between

the First Circuit and the Illinois Supreme

Court as to Whether an Unequivocal Ban

of Secret Recording is Overbroad

The panel opinion below created a conflict on an

important federal question. The First Circuit’s opinion

conflicts directly with the Illinois Supreme Court’s

unanimous decision in People v. Clark, 6 N.E.3d 154

(Ill. 2014), on the dispositive issue of whether a law

that prohibits secret audio recording of oral communications under any circumstances by individuals is facially overbroad.

In Clark, the Illinois Supreme Court reviewed an

indictment against a citizen who, in a child support

matter, secretly recorded his own conversation with

the opposing party’s attorney and a courtroom proceeding in the case. 6 N.E.3d at 156. The statute defined

“ ‘[c]onversation’ as ‘any oral communication between

2 or more persons regardless of whether one or more of

the parties intended their communication to be of a

private nature under circumstances justifying that

expectation.’ ” Id at 159 (quoting 720 ILCS 5/14-1(d)

12

(2010)). The Illinois Supreme Court interpreted the

law to “essentially deem[ ] all conversations to be private and not subject to recording even if the participants themselves have no expectation of privacy.”

Clark, 6 N.E.3d at 160. This reading matched the interpretation of the Massachusetts statute—Section

99—by the commonwealth’s court of last resort to “prohibit all secret recordings by members of the public”

and that the law applies even in situations in which

there is no reasonable expectation of privacy. Hyde, 750

N.E.2d at 967–68.

The Illinois Supreme Court found its state law to

be content neutral and subject to intermediate scrutiny, which requires that a law “will be sustained under

the first amendment if it advances important governmental interests unrelated to the suppression of free

speech and does not burden substantially more speech

than necessary to further those interests.” Clark, 6

N.E.3d at 160 (citing Turner Broadcasting System, Inc.

v. Federal Communications Comm’n, 520 U.S. 180, 189

(1997)). The court determined that the governmental

interest was the protection of “conversational privacy.”

Clark, 6 N.E.3d at 160. “However, the statute does not

stop there. It criminalizes a whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private.” Id. at 161. The

court noted four examples of conversations that one

could not be constitutionally prohibited from recording

secretly: “(1) a loud argument on the street; (2) a political debate in a park; (3) the public interactions

of police officers with citizens . . . and (4) any other

13

conversation loud enough to be overheard by others

whether in a private or public setting.” Id. The court

ruled that:

Illinois’ privacy statute goes too far in its effort to protect individuals’ interest in the privacy of their communications. Indeed, by

removing all semblance of privacy from the

statute in the 1994 amendments, the legislature has “severed the link between the eavesdropping statute’s means and its end.” . . . The

statute therefore burdens substantially more

speech than is necessary to serve the interests

the statute may legitimately serve.

Id. at 161–62 (quoting Am. Civil Liberties Union of

Illinois v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012)).

Thus, the “statute is overbroad because a substantial

number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep.”

Clark, 6 N.E.3d at 162.

The contrast between the Illinois Supreme Court

and the First Circuit could not be starker. The former

found the removal of “all semblance of privacy” from a

statute governing secret audio recording to require

the strong medicine of facial overbreadth. Id. at 161.

The latter found minimal First Amendment concerns

with a statute “ ‘protect[ing] private conversations in

all settings ’” sans any definition of privacy whatsoever. App. 18 (quoting App. 136). Although “[PVA] . . .

identif[ied] ten examples of applications of Section

99 that it argues are unconstitutional”—four of which

specifically reflected the examples presented by the

14

Illinois Supreme Court in the Clark decision—along

with a history of enforcement against third parties,

the First Circuit ruled that this did not demonstrate

substantial overbreadth. App. 59; see Clark, 6 N.E.3d

at 161. Throughout its ruling, the court provided next

to no articulation of this plainly legitimate sweep—privacy. Nevertheless, the court found Section 99 to be

constitutional in an “extensive range of applications[.]”

App. 59.

The Illinois Supreme Court recognized, contra the

First Circuit, the power of audio recording as a medium and its First Amendment implications: “The person taking notes may misquote us or misrepresent

what we said, but an audio recording is the best evidence of our words.” Clark, 6 N.E.3d at 161. The panel

below made but the most pointed acknowledgement of

the First Amendment. App. 39–41. PVA’s record shows

the value of secretly recorded audio as the best evidence of candid statements that are often unbelievable—or, at least, deniable—if merely transcribed.

Regardless, it is clear that laws that govern audio recording are protected by the First Amendment, and the

First Circuit erred by placing an abnormal burden

upon would-be speakers. See Citizens United v. Fed.

Election Comm’n, 558 U.S. 310, 336 (2010) (“Laws enacted to control or suppress speech may operate at different points in the speech process.”).

The rulings from the Illinois Supreme Court and

First Circuit both applied intermediate scrutiny. Clark,

6 N.E.3d at 160; App. 48–51. The opinions part ways over

the governmental interest underlying the respective

15

statutes. The First Circuit’s limited discussion of privacy upheld the district court’s ruling that privacy is

served because there are “types of conversations . . .

where one might expect to be overheard, but not recorded and broadcast.” App. 131. The Illinois Supreme

Court correctly found this distinction meaningless.

Clark, 6 N.E.3d at 161 (“If another person overhears

what we say, we cannot control to whom that person

may repeat what we said.”). Nor has this Court ever

taken privacy so far as the First Circuit. In the Fourth

Amendment context, this Court has distinguished between the expectation of privacy from eavesdropping

and from repetition or recording of communications

knowingly disclosed to another party. See U.S. v. White,

401 U.S. 745, 749 (1971). For law enforcement, recording via electronic eavesdropping requires a warrant,

but recording one’s own (or an informant’s) interactions with suspects does not. Cf. id. with Katz v. U.S.,

389 U.S. 347, 358–59 (1967). Even in the context of

eavesdropping or wiretapping—bona fide invasions of

privacy—this Court has ruled that First Amendment

interests can exceed privacy concerns for third-party

publication of such material. See Bartnicki, 532 U.S. at

535. A direct regulation of audio recording must, at the

very least, provide some cognizable definition of the

privacy it claims to protect, or some link between the

statute’s means and its end, to pass intermediate scrutiny.

Privacy is an important—perhaps even compelling—governmental interest, and conversational privacy may be properly protected by law. But one’s oral

16

communications are not so private that they may be

protected by a ban on secret audio recording under any

circumstances. The First Amendment interests in candor, accuracy, public accountability and the free flow of

information are far stronger here than those implicated by laws aiming to govern obscenity and displays

of animal cruelty, statutes that this Court has nonetheless found facially overbroad. See Ashcroft v. Free

Speech Coal., 535 U.S. 234, 246–51, 255 (2002); U.S. v.

Stevens, 559 U.S. 460, 481 (2010). And without the protection of the overbreadth doctrine, capturing important historic events like the beating of Rodney King

or today’s Antifa protests becomes impossible.

If judges have . . . by their own fiat today created a right of privacy equal to or superior to

the right of a free press that the Constitution

created, then tomorrow and the next day and

the next, judges can create more rights that

balance away other cherished Bill of Rights

freedoms.

Time, Inc. v. Hill, 385 U.S. 374, 400 (1967) (Black, J.,

concurring).

A clear split on this fundamental question of free

speech and the free press is reason enough to grant

this petition.

17

B. The First Circuit’s Overbreadth Doctrine Imposes an Insolvable Constitutional Calculus and is in Conflict with

Four Other Circuits

The court below held that PVA failed to carry its

burden demonstrating overbreadth because it did not

analyze the legitimate reach of Section 99. App. 59. But

this imposes an abnormal burden on challengers because it requires them to engage in an insolvable constitutional calculus—that is, estimating the entire

universe of valid applications of a law. Where a law has

been widely enforced against third parties, upheld by

state courts, and broadly abridges First Amendment

rights, overbreadth invalidation is appropriate.

Both Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980), and Members

of City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984), set forth the parameters of an

overbreadth challenge. The overbreadth doctrine asks

courts to examine the “likelihood that the statute’s

very existence will inhibit free expression.” Taxpayers

for Vincent, 466 U.S. at 799. Such a doctrine is invoked

sparingly but is appropriate for a law that is “incapable

of limitation.” Id. at 801. Like the airport resolution

reviewed in Board of Airport Commissioners of City

of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569,

574 (1987), Section 99 makes all of Massachusetts a

“First Amendment Free Zone” for undercover reporting—making this law especially appropriate for overbreadth invalidation.

18

This Court’s overbreadth doctrine reflects the concerns that underlie substantive First Amendment

principles. See Richard H. Fallon, Jr., Making Sense of

Overbreadth, 100 YALE L.J. 853, 867 (1991). Its focus is

the prophylactic protection of First Amendment values; the doctrine exists to protect large classes of

speakers from truly far-reaching laws that lend themselves to “harsh and discriminatory enforcement. . . .”

Thornhill v. Alabama, 310 U.S. 88, 97–98 (1940). Rather than embrace case-by-case whittling away of such

laws, this Court has recognized the importance of

striking such laws down on their face to preserve important free speech interests. Citizens United, 558 U.S.

333–34 (“substantial time would be required to bring

clarity to the application of the statutory provision . . .

in order to avoid any chilling effect”).

To be clear, PVA detailed how Section 99 unconstitutionally chilled its own speech. App. 106, 170–171,

174–176; PVA v. Rollins, 19-1586 (1st Cir.) Br. for

Appellee/Cross-Appellant at 11, 25–30. PVA detailed

how Section 99 reached large swaths of protected recording. PVA v. Rollins, 16-10462-PBS (D. Mass.), Dkt.

102 at 8–12, Dkt. 122 at 15–17; 19-1586 Br. for Appellee/

Cross-Appellant at 15–17. And PVA described how

Section 99 was plainly enforced and upheld by state

courts against third parties. 16-10462-PBS, Dkt. 102 at

16; App. 177; 19-1586 Br. for Appellee/Cross-Appellant

at 19–20. The respondent pled her own examples detailing what she believed to be the appropriate reach

of the law. 1JRA1244–1247. For example, she hypothesized that “one parent’s secret recording of telephone

19

conversations with the other parent” or placing secret

cameras in employee bathrooms would be demonstrative of the law’s appropriate reach. 1JRA1245. In response, PVA detailed exactly how myriad statutes

and torts in Massachusetts already protect those

kinds of truly private situations. 19-1586 Br. for

Appellee/Cross-Appellant at 44–45, 56–57. This is an

appropriate record upon which to gauge the overbreadth of Section 99.

In Village of Schaumburg, this Court invalidated

an ordinance under the overbreadth doctrine that purported to protect against fraud and to promote residential privacy. 444 U.S. 620. In its analysis, the Court

examined whether more narrowly drawn alternatives

might reach the governmental interest at hand while

preserving free speech rights. Id. at 638. The Court

did not examine in detail each legitimate application

of the law, nor did it expect the challenging party to

do so.

The core focus of an overbreadth inquiry is whether

a challenged law damages a substantial amount of

speech “not tied to the Government’s interest. . . .”

Ashcroft, 535 U.S. at 256. In Ashcroft, this Court did

not perform a numerical analysis as to how an antichild pornography law might be appropriately applied.

Indeed, imposing that burden on the challenging party

would make the review of such speech restrictions impossible. A numerator and denominator approach to

overbreadth might find hundreds of thousands of legitimate applications of the law applied to child pornography but perhaps only dozens of examples of its

20

inappropriate reach. Even so, this Court invalidated

the challenged law on its face under the overbreadth

doctrine.

Four circuits have faithfully followed the Schaumburg—Ashcroft approach, which conflicts with the First

Circuit’s approach here. For example, in McCauley v.

University of the Virgin Islands, the Third Circuit analyzed the constitutionality of a college speech code under the overbreadth doctrine. 618 F.3d 232 (3d Cir.

2010). There, a code that regulated speech causing

“emotional distress” was substantially overbroad, even

though the law could be applied constitutionally to

physically harassing conduct. Id. at 252. The court did

not perform a numerical analysis. Similarly, the Sixth,

Seventh, and Eighth Circuits ask a challenging party

to demonstrate that the reach of the law is substantially overbroad. They do not place the burden on the

challenger to examine the ways in which the law may

be constitutionally applied. Speet v. Schuette, 726 F.3d

867 (6th Cir. 2013); Bell v. Keating, 697 F.3d 445 (7th

Cir. 2012); Ways v. City of Lincoln, Neb., 274 F.3d 514

(8th Cir. 2001).

Two of these circuits have gone so far to instruct

that overbreadth should not be performed as an exercise in “mathematical calculation or numerical

comparison.” Free Speech Coalition, Inc. v. Attorney

General, U.S., 787 F.3d 142, 161 (3d Cir. 2015) (overruled on other grounds). The Sixth Circuit explains

that substantial overbreadth is not determined by

“placing, say, the number of overall applications of

the statute in the denominator and the number of

21

unconstitutional applications of the statute in the numerator.” Connection Distributing Co. v. Holder, 557

F.3d 321, 340 (6th Cir. 2009). This Court has never

called for this kind of artificial, mathematical calculation—and for good reason. Requiring challengers to

pore over each and every legitimate application of the

law is a burdensome, perhaps impossible, exercise best

left to the government body defending its constitutionality. It is then for the judiciary to compare the invalid

reach of the law to its legitimate applications, which

the courts below did not do.

PVA pled that the Commonwealth has enforced

the law against third party reporters and political activists. The Massachusetts Supreme Judicial Court already deemed Section 99 an outright ban, making the

law incapable of a limiting construction. Per the requirements of the Third, Sixth, Seventh, and Eighth

Circuits, PVA carried its burden. Moreover, the Commonwealth argued the appropriate reach of the law before both lower courts. 1JRA1244–1247. As the Third,

Sixth, Seventh, and Eighth Circuits—as well as Ashcroft—show, it was then the duty of the court to measure the breadth of the law, which the First Circuit

refused to do. App. 59.

PVA does not ask that the overbreadth doctrine be

invoked lightly. But where, as here, a blundering law

is before a court and its reach extends widely to third

parties, making Massachusetts a “First Amendment

Free Zone,” overbreadth should be readily applicable.

Jews for Jesus, 482 U.S. 574. Today, all reporters or

political activists nationwide wishing to investigate

22

stories using secret recording in Massachusetts are

censored. It is as plainly unconstitutional as the Illinois statute struck down by the state’s highest court.

That the First Circuit would reject PVA’s overbreadth

claim because it did not examine how the law might be

appropriately applied is plain error. The First Circuit

should have compared the parties’ contending claims

about the law’s valid and invalid applications. Instead,

it shifted that entire burden to the challenging party.

The First Circuit’s approach departs from this Court’s

instructions in Schaumburg and Ashcroft in examining overbreadth and conflicts directly with four other

circuits who would have at least measured and made

an assessment as to the relative breadth of the law.

Absent intervention by this Court, the First Circuit’s

approach only insulates oppressive laws—like the nation’s only ban on secret recording—from review.

II.

Certiorari Should Be Granted to Resolve a

Conflict Between the Circuits over Ripeness Standards Governing As-Applied, PreEnforcement First Amendment Challenges

The First Circuit’s opinion below creates an insurmountable burden for parties seeking pre-enforcement, First Amendment review. Instead of reviewing a

speech-suppressive law following an objective demonstration of chill, the court deemed PVA’s detailed plans

too “hypothetical and abstract” for Article III purposes.

App. 65. This directly conflicts with this Court’s ripeness precedent and the approach of five other circuit

courts of appeals.

23

The First Circuit found Article III justiciability for

PVA’s overbreadth claim, but not its as-applied claims.

This contradicts the ordinary rule that it is easier to

have standing to raise as-applied claims. See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 493–94

(2009); Winter v. Wolnitzek, 834 F.3d 681, 687 (6th Cir.

2016) (for purposes of establishing Article III standing,

“raising a narrow as-applied challenge is easier, not

harder, than raising a facial challenge”). It also creates a Catch-22 for challengers: detailed plans supporting as-applied challenges are non-justiciable but

far-reaching, facial claims satisfy Article III. How one

pleads a proper pre-enforcement, First Amendment

challenge in the First Circuit remains a mystery.

PVA offered a concrete legal question: may Massachusetts ban secret audio recording under any circumstances? To reach an answer, the First Circuit

demands impossibly precise descriptions of recordings

PVA has yet to make, and lengthy and burdensome discovery for each type of imaginable recording. Absent

this, the court would find such a challenge non-justiciable. This forbidding approach slams the courthouse

doors and prevents effective redress for citizens. This

cannot be squared with basic First Amendment principles. See, e.g., Fed. Election Comm’n v. Wisconsin Right

to Life, Inc. (“WRTL”), 551 U.S. 449, 469 (2007) (litigation must provide prompt resolution of First Amendment claims).

A ripeness inquiry asks whether the parties before the court face a “realistic danger of sustaining a

direct injury as a result of the statute’s operation or

24

enforcement.” Babbitt v. United Farm Workers Nat’l

Union, 442 U.S. 289, 298 (1979). The ripeness doctrine

is drawn from both constitutional and prudential concerns. Reno v. Catholic Social Services, Inc., 509 U.S.

43, 58 n.18 (1993). Constitutional ripeness focuses on

whether the plaintiff ’s claimed injury is “conjectural

or hypothetical.” Nat’l Organization for Marriage,

Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013). A preenforcement challenge is ordinarily ripe where there is

a “reasonable threat of prosecution.” Ohio Civil Rights

Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619,

625 n.1 (1986).

The chill of a speech-suppressing law constitutes

an injury for standing purposes. This is because “First

Amendment interests are fragile. . . .” Bates v. State

Bar of Arizona, 433 U.S. 350, 380 (1977). Where justiciability has been demonstrated, additional considerations about whether a factual record is sufficiently

developed or articulated stands in “tension with [this

Court’s] recent reaffirmation of the principle that ‘a

federal court’s obligation to hear and decide’ cases

within its jurisdiction ‘is virtually unflagging.’ ” Susan

B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014)

(quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126 (2014)).

To get to the heart of ripeness, this Court asks

whether the “conflicting contentions of the parties . . .

present a real, substantial controversy between parties having adverse legal interests, a dispute definite

and concrete, not hypothetical or abstract.” Babbitt,

442 U.S. at 298 (quoting Railway Mail Assn. v. Corsi,

25

326 U.S. 88, 93 (1945)). So, for example, this Court held

in Babbitt that an Arizona law sharply limiting false

consumer publicity was ripe for review when challenged by a union that engaged in past publicity campaigns and wished to do similar ones. Although some

false statements of fact may be proscribed under the

First Amendment, the challengers were not required

to detail each and every statement they might make

for purposes of judicial evaluation. To do so would be

overly burdensome for speakers seeking relief. Similarly, an organization’s challenge to foreign terrorist

designations was justiciable when the group provided

support to such groups in the past and alleged it would

provide “similar support” in the future. Holder v. Humanitarian Law Project, 561 U.S. 1, 15–16 (2010). More

recently, this Court upheld justiciability in Driehaus,

where speakers demonstrated past activities proscribed by the law along with pleading an intent to “engage in substantially similar activity in the future.”

573 U.S. at 161.

Babbitt, Holder, and Driehaus stand for the proposition that sensitive First Amendment rights require

an equally sensitive ripeness doctrine. Without it,

courts are free to place insurmountable hurdles in the

path of controversial social activists, undercover journalists, and other truth seekers facing censorship.

26

A. The Evidence Supporting Review Was

Clear Cut, Concrete, and Congruent to

the Relief Requested

To support its challenge to Section 99, PVA filed verified complaints. See App. 165. Through the complaint,

depositions, affidavits, and exhibits, PVA demonstrated

the history of its prior secret recordings and a time,

place, and manner of its proposed secret recordings in

Massachusetts. 1JRA142–144, 155–158, 161–162, 164,

180, 191–193, 195–200; 212–221.

1. PVA Offered Detailed Plans for

Newsgathering

PVA included examples of its past investigations

nationally. App. 171–174. The evidentiary record included intercepted audiovisual recordings of oral communications from past investigations in which PVA

examined public rallies, including the deadly Charlottesville, Virginia “Unite the Right” rally on August

12, 2017. 1JRA232. The files include audio of the fatal

car crash and subsequent police investigation on the

scene. Id. PVA’s verified complaints attested to the nature and method of that recording along with PVA’s

commitment to an extensive, ongoing series of similar

investigations within Massachusetts. App. 174–176.

PVA proposed two counts for as-applied relief:

(1) to secretly record the oral communications of public

officials engaged in their duties in public spaces and

(2) to secretly record anyone in circumstances that lack

a reasonable expectation of privacy. App. 176–180. PVA

27

sought this relief in a flexible manner because its plans

often change as an investigation opens up more leads.

App. 175–176. Securing the right to record, for example, just police officers would sacrifice PVA’s ability to

record other government officials. Rather than continually return to court to secure the right to record

different content, PVA asked for broader relief appropriate to its fluid, but detailed, investigations. Notably,

it also sought “any other relief that the Court deems

just and appropriate.” App. 180; see also 1JRA140.

Thus, PVA offered detailed plans while admitting the

inherent unpredictability of future stories—making its

relief congruent to its pleading.

The breadth of the remedy proved too much for the

court below. But PVA’s flexible prayer for relief was in

accord with the breadth of remedy requested by petitioners in Driehaus. 573 U.S. 149; App. 179–180. There,

one petitioner, the Coalition Opposed to Additional

Spending and Taxes (“COAST”) submitted a prayer for

relief asking, among other things, that the Ohio law be

declared “unconstitutional as applied to citizens and

organizations taking positions on political issues.” Susan B. Anthony List v. Driehaus, 10-cv-00720-TSB (S.D.

Ohio), Dkt. 26 at 19. Its relief was not cabined to its

planned political statements. This flexible remedy

would allow COAST the ability to issue future political

statements without having to return to court seeking

additional relief.

PVA detailed four operational plans for investigations that have been censored by Section 99. App. 170–

171, 173–176. PVA alleged it wants to investigate

28

landlords taking advantage of housing shortages in

Boston where college students may live in unsafe and

dilapidated conditions. App. 170. It wants to investigate government officials’ stances on immigration policy and deportation. App. 171. It alleged it would record

interactions with government officials in Boston and

around the State House to investigate this issue. Id.

PVA alleged its desire to record interactions between

members of Antifa organizations and public officials.

App. 174. It demonstrated its history of recording

similar protest movements across America and pled

its desire to “capture whether antifa public events and

protests are peaceful, whether police or other public officials’ interactions with antifa members are non-violent, and otherwise capture the events to report to the

public.” Id. PVA even included audiovisual evidence of

similar, past recordings in other states. 1JRA232.

Lastly, PVA pled that due to the spontaneous nature

of its investigations, PVA “cannot predict (or plead)

where these sorts of spontaneous investigations will

lead and how they will develop.” App. 175–176.

Through testimony, affidavits and its complaint,

PVA provided evidence that it would not operate in

Massachusetts due to the risk of enforcement of the

felony provisions of the law. When asked in a deposition whether PVA had any plans to record in Massachusetts, PVA producer Joe Halderman stated:

“Not in Massachusetts, no, that would be

against the law. We can’t do that. I would love

to probably secretly record a whole bunch of

people because that’s what I do. I think it is a

29

very important and valuable kind of journalism. We don’t have any plans to because we

can’t. It’s against the law, and we don’t break

the law.”

App. 106 (1JRA366–367). Each project was supported

by affidavits and sworn testimony to show the scope of

investigations PVA was engaged in nationwide and its

desire to act similarly in Massachusetts. 1JRA142–

144; 155–158; 161–162; 164; 180; 191–193; 195–200;

212–221.

Such well-detailed plans are ordinarily sufficient

to meet justiciability concerns for a pre-enforcement

First Amendment challenge. As the First Circuit saw

it, there was too great a difference between PVA’s

stated plans and the “breadth of remedy that it has requested”—leading to a finding that there was no Article III case or controversy before the court. App. 64–65.

Like Driehaus, PVA’s elected remedy was congruent

with its detailed pleadings. Though presented with

concrete plans and supporting evidence, PVA’s claims

were deemed “hypothetical.” App. 65.

2. PVA’s As-Applied Claims are Ripe

Under This Court’s Standards

PVA has “alleged an intention to engage in a

course of conduct arguably affected with a constitutional interest.” Driehaus, 573 U.S. at 160 (quoting

Babbitt, 442 U.S. at 298). It demonstrated its history of

engaging in similar recording in the past. Babbitt, 442

30

U.S. at 301 (ripeness satisfied where appellant alleged

it had “actively engaged in consumer publicity campaigns in the past”). PVA’s planned activity—the use

of secret recording for newsgathering purposes—is

clearly proscribed by Section 99. The threat of future

enforcement is substantial—as the record demonstrates

a history of past enforcement. See App. 167. And newsgatherers who violate the law are subject to felony

prosecution. Mass. Gen Laws. c. 272, § 99(B)(2), (B)(4),

(C)(1) (App. 139–140, 143). On this complete record,

the First Circuit found ripeness lacking.

Review is also appropriate because the controversy presented is “purely legal.” Thomas v. Union Carbide Agr. Products Co., 473 U.S. 568, 581 (1985). This

case asks whether Massachusetts may constitutionally

ban all surreptitious audio recording of oral communications. PVA has not specifically challenged how the

Commonwealth might enforce the law in many nuanced applications—and, indeed, it need not. The Supreme Judicial Court of Massachusetts has long held

that Section 99 constitutes an outright “ban on the

public’s clandestine use of [intercepting] devices.”

Hyde, 750 N.E. at 968–69; cf. App. 61 (“This lack of precision also prompts the concern that it is merely ‘conjectural to anticipate’ that Section 99 will ever be

applied in many of the distinct contexts to which Project Veritas’s challenge to that measure—by the organization’s own terms—extends.”) The Commonwealth

has a long history of enforcing the law, including

against someone who secretly recorded public happenings at a political rally. Com. v. Manzelli, 864 N.E.2d

31

566 (Mass. App. Ct. 2007). It has even been applied

civilly in a lawsuit brought by an attacker against his

victim, who secretly recorded the altercation. Johnson

v. Frei, 103 N.E.3d 1239, 2018 WL 2223654 at *1-*2

(Mass. App. Ct. 2018); see App. 162–163. This record

presents a focused, purely legal inquiry.

Like Jews for Jesus, there is no apparent saving

construction of the law. 482 U.S. at 575. Where a state

supreme court has already given an authoritative interpretation of a challenged law, it is “not within [the

federal judiciary’s] power to construe and narrow state

laws.” Grayned v. City of Rockford, 408 U.S. 104, 110

(1972). PVA’s suit asked for the courts below to conduct

a review of the legal question whether Massachusetts

could ban all surreptitious audio recording.

Because of the breadth of the ban and its history

of interpretation by state courts, it was correct for PVA

to pursue broader and more flexible remedies—facially

and as applied. That the First Circuit used petitioner’s

remedy against it in deciding its claims were non-justiciable has no support in First Amendment precedent.

See, e.g., WRTL, 551 U.S. at 469 (citing New York Times

Co. v. Sullivan, 376 U.S. 254, 269 (1964)) (standards for

safeguarding speech must “give the benefit of any

doubt to protecting rather than stifling speech”).

32

B. The First Circuit’s Holding Directly Conflicts with the Second, Fourth, Sixth,

Seventh, and Tenth Circuit Courts of

Appeals

The Second, Fourth, Sixth, Seventh, and Tenth

Circuits recognize that when a party brings a preenforcement, First Amendment challenge, a claim will

be ripe when: (1) there is evidence of past, similar

speech, (2) affidavits or testimony support a present

desire to engage in similar speech, and (3) there is a

plausible claim that the party will not speak because

of a credible fear of enforcement. The First Circuit’s direct contradiction of these circuits supports granting

review here. It is also appropriate to review the “actual

injury” component of standing elucidated in Lujan v.

Defenders of Wildlife due to the overlap of ripeness

with injury-in-fact determinations. 504 U.S. 555, 560–

61 (1992). That standard requires “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural

or hypothetical.”

1. Three Other Circuits Would Find

This Controversy Ripe

The Tenth Circuit has a well-established body of

case law examining when pre-enforcement, First

Amendment challenges are ripe or meet the actual injury component of standing. In New Mexicans for Bill

Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995),

ripeness was found where a congressman challenged a

state law forbidding use of federal campaign funds for

33

state campaigns. Gonzales was ripe where: (1) Richardson never filed to run for office, (2) never announced a

position he would campaign for, and (3) never detailed

any timeframe for running. Id. at 1503–04. The challenge was ripe because the law “created a direct and

immediate dilemma regarding Congressman Richardson’s fund raising activities.” Id. at 1501. This is the

crux of the constitutional ripeness doctrine—the existence of a direct and immediate dilemma implicating

First Amendment rights. See also Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1086 (10th

Cir. 2006) (pleading the parties “ ‘have used the initiative process often in the past and are likely to in the

future’ ” satisfied ripeness).

The Second Circuit has similarly found ripeness in

pre-enforcement, First Amendment challenges without the additional burdens imposed by the First Circuit. In Walsh, the court explained that a “real and

imminent fear of [ ] chilling is enough[.]” 714 F.3d at

689. There, the National Organization for Marriage included a copy of an advertisement it wanted to broadcast. Id. at 690. The Second Circuit realized that the

proposed speech triggered credible fear by the group

that it might be regulated as a political action committee. Id. Even under prudential ripeness, the court held

that there were clear legal questions centered on a concrete legal dispute between the parties. Id. at 691. A

desire to engage in “materially similar” speech was

enough to pass ripeness concerns. Id.

The Sixth Circuit has also, post-Driehaus, followed

a similar approach when considering pre-enforcement,

34

First Amendment challenges. In Winter v. Wolnitzek,

the Sixth Circuit found a challenge to Kentucky’s Code

of Judicial Conduct ripe where one of the challengers

issued reelection statements possibly in violation of

the law and another candidate simply alleged he

“want[ed] to give speeches supporting the Republican

Party, to hold Republican fundraisers, to seek and receive endorsements from Republican candidates, and

to donate to candidates and to the party.” 834 F.3d at

686–87. This offered “plenty of detail” to evaluate the

issue and demonstrated a “credible threat of enforcement” and satisfied ripeness concerns. Id. at 687–88.

Letting the First Circuit’s ripeness doctrine stand

would be to sacrifice First Amendment values for peculiar—perhaps impossible—pleading formalities. As

summarized by Charles A. Wright, Arthur R. Miller &

Edward H. Cooper, “First Amendment rights . . . are

particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss.” FEDERAL

PRACTICE AND PROCEDURE § 3532.3, at 159. That is,

“First Amendment rights are fragile and can be destroyed by insensitive procedures”—including judicial

ones. Henry P. Monaghan, First Amendment “Due Process,” 83 HARV. L. REV. 518, 551 (1970).

2. On Remarkably Similar Facts, the

Seventh and Fourth Circuits Found

Recording Challenges Justiciable

The Seventh Circuit dismissed justiciability concerns in Alvarez. 679 F.3d at 593. That case involved a

35

challenge to a similar ban of recording in Illinois as applied to recording the police. Id. at 588. The court could

not find the ACLU’s challenge to be “ ‘conjectural or hypothetical[.]’ ” Id. at 593. Indeed, the state argued that

the challenge was too indefinite because the recordings

would happen at “ ‘some indefinite future time’ ” and

the “ ‘identities of the parties to the conversation that

[the] ACLU and its members want to record is wholly

unknown.’ ” Id. But it was justiciable because there

were not “unknowable details about the manner in

which the statutory violation will be committed or enforced.” Id.

On each of these issues, the opinion below directly

diverges from Alvarez. Contrary to the Seventh Circuit, the First Circuit would require that PVA plead

each and every government official to be recorded for

the case to be justiciable. App. 65 (“the First Amendment analysis might be appreciably affected by the

type of government official who would be recorded”);

cf. Alvarez, 679 F.3d at 594 (argument that ripeness

is not satisfied because the identities of recorded subjects is unknown is a “nonstarter”). Contrary to the

Seventh Circuit, the First Circuit demanded utmost

certainty about specific subjects of recording, places,

times, and manner—effectively requiring telepathy to

satisfy ripeness concerns. App. 62 (concern over “types

of conversations that are targeted” rendered matter

unripe); Alvarez, 679 F.3d at 594 (“Preenforcement

suits always involve a degree of uncertainty about future events”).

36

In People for the Ethical Treatment of Animals, Inc.

v. Stein, 737 Fed. Appx. 122 (4th Cir. 2018), the Fourth

Circuit found a pre-enforcement, First Amendment

challenge to North Carolina’s Property Protection Act

to be justiciable. That case involved the plans of animal

welfare groups to photograph and record conditions

at animal facilities. The Animal Legal Defense Fund

stated that it had engaged in investigations in the

past, had investigators ready to conduct undercover

work, and had a list of possible sites to investigate. The

Fourth Circuit found this justiciable because the plaintiffs alleged an intention to engage in a course of conduct arguably affected with a constitutional interest—

a general desire to investigate issues of animal welfare.

Id. at 130 (quoting Driehaus, 573 U.S. at 159). This was

further justiciable because the plaintiffs “refrained

from proceeding for fear of being subjected to the severe civil remedies. . . .” Stein, 737 Fed. Appx. at 130.

On each of these issues, the opinion below directly

diverges from Stein. Contrary to the Fourth Circuit,

the First Circuit ignored PVA’s examples of past investigations and recordings to support ripeness. Id. Contrary to the Fourth Circuit, the First Circuit ignored

the many examples pled by PVA about how Section 99

carries a significant risk of enforcement. Id. at 130–31.

And contrary to the Fourth Circuit, the First Circuit

ignored that the injury and dilemma here is PVA’s selfcensorship—now exceeding half a decade. Id. at 131

(“they have refrained from carrying out their planned

investigations based on their reasonable and wellfounded fear that they will be subjected to significant

37

exemplary damages under the Act”); cf. App. 62 (describing PVA’s plans as setting forth “hypothetical rather than real disputes”).

This conflict between the Seventh and Fourth Circuits with the First Circuit on closely related facts warrants review. This division among circuits reflects a

broader inter-circuit disagreement about proper standards of justiciability for pre-enforcement challenges. In

the wake of this conflict, without review, speakers in

the First Circuit will continue to have the courthouse

doors slammed before them, leaving important First

Amendment controversies unresolved.3

C. The First Circuit’s Departure from Ripeness Determinations in First Amendment Cases Necessitates Review

Where the First Amendment is implicated, “we

give the benefit of the doubt to speech, not censorship.”

WRTL, 551 U.S. at 482. The special place held by the

First Amendment means that federal courts should not

be empowered to avoid controversial constitutional

In addition to the circuit splits noted in this petition, a slew

of challenges against recording agricultural operations—so-called

“ag-gag” challenges—have easily passed justiciability concerns in

district courts across the nation. See, e.g., Animal Legal Defense

Fund v. Reynolds, 297 F. Supp. 3d 901, 914–15 (S.D. Iowa 2018);

Animal Legal Defense Fund v. Herbert, 263 F. Supp. 3d 1193,

1200 (D. Utah 2017) (claims justiciable lacking “concrete plans”

because of present desire to violate the law); Animal Legal Defense Fund v. Kelly, 434 F. Supp. 3d 974, 992 (D. Kan. 2020) (general plan to deceptively gain access to animal facility to take

photographs justiciable).

3

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questions simply by invoking an often arbitrary ripeness determination.

Just seven years ago, in a unanimous opinion,

this Court provided clarity for pre-enforcement, First

Amendment ripeness standards. Driehaus, 573 U.S.

149. That instruction reiterated the central truth of

Babbitt, that where a party alleges “ ‘an intention to

engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and

there exists a credible threat of prosecution’ ” then the

claim will be justiciable. Id. at 159 (quoting Babbitt,

442 U.S. at 298). Just one circuit continues to clutch

tightly to a hostile ripeness doctrine.

The First Circuit’s approach to pre-enforcement,

First Amendment ripeness determinations is fundamentally inconsistent with free speech jurisprudence.

Its addition of a “congruency” requirement makes ripeness determinations unworkable. This Court has never

imposed so daunting of pleading or evidentiary requirements. This Court has never demanded a plaintiff

specifically detail each and every proposed plan of

First Amendment conduct down to their minutiae—details that might, as here, constitute conspiracy to commit a felony. See App. 143. Rather, the combined

wisdom of Babbitt, Holder, and Driehaus stand for the

proposition that the existence of a law alone, along

with an intent to violate it, is sufficient to make a

claim justiciable. Otherwise, challengers lack effective

First Amendment redress.

39

To embrace the First Circuit’s approach is to rubberstamp lengthy, burdensome, discovery-driven litigation to invalidate speech-infringing laws. The First

Circuit’s approach would also require piecemeal adjudication to secure a First Amendment right. That is, it

would require initial litigation to secure the right to

record the police, additional litigation secure the right

to record union agents, and so forth for decades. This is

not a sensible approach to preserve First Amendment

freedoms.

Unless this petition is granted, the First Circuit

will continue to invoke a ripeness doctrine hostile to

the First Amendment and shirk its duty to hear and

decide constitutional issues. This is manifestly wrong:

free speech is not a privilege that federal courts may

doll out by whim through noblesse oblige. Stevens, 559

U.S. at 480.

---------------------------------♦---------------------------------

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CONCLUSION

For the reasons stated above, the petition for a

writ of certiorari should be granted.

DATED: May 12, 2021.

Respectfully submitted,

BENJAMIN BARR*

*Counsel of Record

BARR & KLEIN PLLC

444 N. Michigan Ave.

Ste. 1200

Chicago, IL 60611

Telephone: (202) 595-4671

ben@barrklein.com

STEPHEN R. KLEIN

BARR & KLEIN PLLC

1629 K St. NW

Ste. 300

Washington, DC 20006

Telephone: (202) 804-6676

steve@barrklein.com

Counsel for Petitioner