Amicus Curiae Brief — Project Veritas Action Fund, Petitioner v. Rachael S. Rollins, in Her Official Capacity as District Attorney for Suffolk County, Massachusetts

No. 20-1598

In the Supreme Court of the United States

__________________________________________________________

PROJECT VERITAS ACTION FUND,

Petitioner,

v.

RACHEL S. ROLLINS,

IN HER OFFICIAL CAPACITY AS

DISTRICT ATTORNEY FOR

SUFFOLK COUNTY, MASSACHUSETTS,

Respondent.

________________________________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE FIRST CIRCUIT

__________________________________________________________

AMICUS BRIEF OF ACCURACY IN MEDIA,

COOLIDGE-REAGAN FOUNDATION,

LEADERSHIP INSTITUTE, AND PUBLIC

INTEREST LEGAL FOUNDATION

IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI

__________________________________________________________

DAN BACKER*

CHALMERS & ADAMS LLC

441 N. LEE ST., SUITE 300

Alexandria, VA 22314

(202) 210-5431

dbacker@ChalmersAdams.com

Counsel of Record for

Amici Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iii

INTERESTS OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................. 2

STATEMENT OF THE CASE ................................. 4

ARGUMENT .............................................................. 7

I. THIS COURT SHOULD GRANT

CERTIORARI TO AFFIRM THE

FUNDAMENTAL FIRST AMENDMENT

RIGHT TO SURREPTITIOUSLY

RECORD GOVERNMENT OFFICIALS

AND EMPLOYEES. ............................................ 7

A. This Court Should Hold that the Right

to Record in a Place Where a Person

Otherwise Has the Right to Be Present is

a Form of Free Speech, and Restrictions

are Subject to Strict Scrutiny. ...................... 8

B. Deep Schisms Exist Among Different

Jurisdictions’ Treatment of Recordings

Under the First Amendment. ..................... 15

C. This Issue is Important

and Warrants Certiorari ............................. 17

ii

II. THIS COURT SHOULD GRANT

CERTIORARI TO CLARIFY THE

NEED FOR FACIAL RELIEF IN

FIRST AMENDMENT CASES. ....................... 21

CONCLUSION ........................................................ 26

iii

TABLE OF AUTHORITIES

Cases

Page(s)

ACLU v. Alvarez,

679 F.3d 583 (7th Cir. 2012).................... 3, 14, 16

Anderson v. City of Hermosa Beach,

621 F.3d 1051 (9th Cir. 2010)............................. 14

Animal Legal Def. Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018).........................3, 16

Barnicki v. Vopper,

532 U.S. 514 (2001)................................................ 9

Bd. of Airport Comm’rs v. Jews for Jesus,

482 U.S. 569 (1987)..........................................4, 24

Bivens v. Six Unnamed Agents of

the Fed. Bureau of Narcotics,

403 U.S. 388 (1971).............................................. 21

Brinsdon v. McAllen Indep. Sch. Dist.,

863 F.3d 338 (5th Cir. 2017)...........................3, 16

Buckley v. Valeo,

424 U.S. 1 (1976) ..............................................3, 13

Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993).............................................. 25

Citizens United v. FEC,

558 U.S. 310 (2010).............................................. 23

iv

Cohen v. California,

403 U.S. 15 (1971) ................................................ 11

Commonwealth v. Barboza,

763 N.E.2d 547 (Mass. App. 2002)....................... 5

Commonwealth v. Camilli,

No. 10-P-1155,

2012 Mass. App. Unpub. LEXIS 477

(Mass. App. Apr. 17, 2012).................................... 6

Commonwealth v. Hyde,

750 N.E.2d 963 (Mass. 2001)................................ 5

Commonwealth v. Jackson,

349 N.E.2d 337 (Mass. 1976)................................ 5

Commonwealth v. Manzelli,

864 N.E.2d 566 (Mass. App. 2007)....................... 5

Commonwealth v. Wright,

814 N.E.2d 741 (Mass App. 2004)........................ 5

Damon v. Hukowicz,

964 F. Supp. 2d 120 (D. Mass. 2013) ................... 5

Denicola v. Potter,

No. 19-cv-11391-ADB,

2020 U.S. Dist. LEXIS 114540

(D. Mass. June 30, 2020) ....................................... 6

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ................................ 15

v

Fordyce v. City of Seattle,

55 F.3d 436 (9th Cir. 1995) ...........................15, 25

Freedman v. Maryland,

380 U.S. 51 (1965) ................................................ 23

Gitlow v. New York,

268 U.S. 652 (1925)................................................ 8

Gouin v. Gouin,

249 F. Supp. 2d 62 (D. Mass. 2003) ..................... 6

Hurley v. Irish-Am. Gay, Lesbian

and Bisexual Group of Boston,

515 U.S. 557 (1995)............................................ 3, 9

Joseph Burstyn v. Wilson,

343 U.S. 495 (1952)................................................ 9

Kaplan v. California,

413 U.S. 115 (1973)................................................ 9

Kelly v. Borough of Carlisle,

622 F.3d 248 (3d Cir. 2010) ............................3, 16

Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988)................................... 3, 13, 23

Mills v. Alabama,

384 U.S. 214 (1966)................................................ 9

Minn. Star & Trib. Co. v.

Minn. Comm’r of Rev.,

460 U.S. 575 (1983).............................................. 13

vi

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964)................................................ 9

Near v. Minnesota,

283 U.S. 697 (1931)................................................ 8

Police Dep’t of Chicago v. Mosley,

408 U.S. 92 (1972) ................................................ 24

Press-Enter. Co. v. Superior Court of Cal.,

464 U.S. 501 (1984).............................................. 12

Red Lion Broad. Co. v. FCC,

395 U.S. 367 (1969).............................................. 10

Reed v. Town of Gilbert,

576 U.S. 155 (2015)..........................................4, 25

Scott v. Harris,

550 U.S. 372 (2007).............................................. 11

Sec’y of State of Maryland v.

Joseph H. Munson Co.,

467 U.S. 947 (1984).............................................. 24

Smith v. Cumming,

212 F.3d 1332 (11th Cir. 2000).....................15, 25

Thornhill v. Alabama,

310 U.S. 88 (1940) ................................................ 21

Turner v. Driver,

848 F.3d 678 (5th Cir. 2017)............................... 15

vii

United States v. Int’l Union United Auto.,

Aircraft & Agri. Implement Workers,

352 U.S. 567 (1957).............................................. 10

United States v. Playboy Entm’t Group,

529 U.S. 803 (2000)................................................ 9

United States v. Stevens,

559 U.S. 460 (2010)............................................ 2, 9

Constitutional Provisions, Statutes, and Rules

FED. R. CIV. P. 56 .......................................................11

Mass. Gen. Laws ch. 272, § 99 ......................... 3-5, 22

S. Ct. R. 37.6 ................................................................ 1

U.S. CONST., amend. I ................................................. 8

Other Sources

Accuracy in Media Exposes

Iowa Senate Candidate,

ACCURACY IN MEDIA (Oct. 13, 2020) ................... 19

David M. Brown, Obama to

Amend Report on $800,000 in Spending,

TRIB, LIVE (Aug. 22, 2008, 12:00 AM)................ 17

viii

Wesley J. Campbell, SpeechFacilitating Conduct,

68 STAN. L. REV. 1 (2016)..................................... 11

Cheryl Corley, 1 Year Later, The Video of

George Floyd Death Has Lasting Impacts,

NPR (May 7, 2021, 5:03 AM ET).......................... 7

Alex DeMarban, Pebble CEO Tom Collier

Resigns After Release of Secretly Recorded

Videos that Show Him Talking About His

Ties to Alaska Politicians and Regulators,

ANCHORAGE DAILY NEWS (Sept. 23, 2020)......... 20

Jonathan Garber, Iowa Sen. Ernst’s Democratic

Challenger Accused of Breaking Campaign

Finance Rules for 3rd Time,

FOX NEWS (Oct. 21, 2020).................................... 18

Mike Gonzalez, For Five Months, BLM

Protestors Trashed American’s Cities. After

the Election, Things May Only Get Worse,

HERITAGE FOUND. (Nov. 6, 2020) ....................... 19

Clark Hoyt, The Acorn Sting Revisited,

N.Y. TIMES (Mar. 20, 2010) ................................. 17

Huma Khan & Z. Byron Wolf, NPR CEO Vivian

Schiller Resigns After Hidden Camera

Sting Snares Top Fundraiser,

ABC NEWS (Mar. 9, 2011, 7:04 AM) ............ 19-20

ix

Margot E. Kaminski, Privacy and the

Right to Record,

97 B.U. L. REV. 167 (2017) ............................10, 12

Seth F. Kreimer, Pervasive Image Capture

and the First Amendment: Memory,

Discourse, and the Right to Record,

159 U. PA. L. REV. 335 (2011) .......................10, 14

Michael Lee, San Diego School District

Trains White Teachers that They “Spirit

Murder” Black Children and Need

“Antiracist Therapy,”

WASH. EXAMINER (Jan. 6, 2021, 2:15 PM) ......... 20

Michael Levenson, A Psychiatrist

Invited to Yale Spoke of Fantasies

of Shooting White People,

N.Y. TIMES (June 6, 2021) ................................... 20

PBS Lawyer Resigns After Being

Caught in Veritas Sting,

AP NEWS (Jan. 12, 2021) ..................................... 18

Jocelyn Simonson, Beyond Body

Cameras: Defending a Robust Right

to Record the Police,

104 GEO. L.J. 1559 (2016) ................................... 12

Peter Wade, Secret Recording Exposes

Intelligence Chairman Warning

Donors About Coronavirus 3 Weeks Ago,

ROLLING STONE (Mar. 19, 2020) ................... 20-21

x

Howard M. Wasserman, Orwell’s

Vision: Video and the Future of

Civil Rights Enforcement,

68 MD. L. REV. 600 (2009) .............................12, 14

Joseph A. Wulfsohn & Brian Flood,

CNN Staffer Admits Network’s Focus

was to “Get Trump Out of Office,”

Calls Its Coverage “Propaganda,”

FOX NEWS (Apr. 13, 2021) ................................... 18

1

INTERESTS OF AMICI CURIAE1

Amicus Accuracy in Media (“AIM”) is a 501(c)(3)

non-profit organization founded in 1969 to use

investigative journalism and citizen activism to

expose media bias, public corruption, and policy

failings. The ability to make surreptitiously

recordings is essential to its investigative journalism.

Amicus Coolidge-Reagan Foundation is a 501(c)(3)

non-profit organization whose mission is to defend,

protect, and advance liberty, particularly the

principles of free speech enshrined in the First

Amendment of the U.S. Constitution. It seeks to

protect the marketplace of political ideas by promoting

vigorous political expression, which surreptitious

records can facilitate.

Amicus Leadership Institute, founded in 1979 by

Morton C. Blackwell, is a 501(c)(3) group that provides

training in grassroots organizing, youth politics, and

communications. It teaches conservatives how to

succeed in politics, government, and the media. Since

2009 its college news site CampusReform.org has

worked with students to expose liberal bias and abuse

in American higher education.

Amicus Public Interest Legal Foundation is a

501(c)(3) nonpartisan, public interest organization

incorporated and based in Indianapolis, Indiana. The

1 Counsel for all parties have consented to the filing of this brief.

Petitioner’s letter of consent is on file with the Clerk;

Respondent’s consent is being filed with this brief. Pursuant to S.

Ct. R. 37.6, amici curiae certify that no counsel for a party

authored any part of this brief, nor did any person or entity, other

than the amici, their members, or their counsel, make a monetary

contribution to fund the preparation or submission of this brief.

2

Foundation’s mission is to promote the integrity of

elections nationwide through research, education,

remedial programs, and litigation. It works with

election administrators nationwide and educates the

public to ensure that the nation’s voter rolls are

accurate and current. The Foundation has advanced

its mission by producing and releasing investigative

videos documenting investigative visits to nonresidential addresses claimed by registered voters in

southern Nevada and Pittsburgh, Pennsylvania.

SUMMARY OF ARGUMENT

This Court should grant certiorari to address a

First Amendment issue of tremendous national

importance that will only continue to grow more

urgent: whether the First Amendment protects a

person’s right to surreptitiously make recordings in a

place he has the right to be, and whether those

recordings may be taken of anyone, any government

officials, or instead only police officers. The First

Circuit adopted a parsimonious interpretation of the

First Amendment, concluding only that a person has

the right to secretly record “police officers discharging

their official duties in public spaces.” Pet. App. 66.2

There is no question that videos produced through

surreptitious recordings are generally a form of speech

subject to full First Amendment protection, United

States v. Stevens, 559 U.S. 460, 481-82 (2010),

including when they are comprised solely of recordings

2 “Pet. App.” refers to the Appendix accompanying the Petition

for Certiorari.

3

of third parties, Hurley v. Irish-Am. Gay, Lesbian and

Bisexual Group of Boston, 515 U.S. 557, 570 (1995).

The act of recording the videos is likewise entitled to

maximal First Amendment protection on a variety of

grounds. Recording a video is itself an act of

expression that falls directly within the First

Amendment, Animal Legal Def. Fund v. Wasden, 878

F.3d 1184, 1205 (9th Cir. 2018); it is inextricably

intertwined with the dissemination of the

constitutionally

protected

videos

themselves,

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 759

(1988), and, alternatively, it is a necessary precursor

for the eventual display of the videos, Buckley v. Valeo,

424 U.S. 1, 16-19 (1976) (per curiam). Under each of

these theories, surreptitious recording of government

officials should be subject to strict scrutiny, and

Massachusetts’ prohibition on it, Mass. Gen. Laws ch.

272, § 99(C), should be invalidated.

More broadly, this Court should resolve the circuit

split over the extent to which the First Amendment

protects the right to make surreptitious recordings.

Some circuits have expressly upheld the right to make

secret recordings. Animal Legal Def. Fund, 878 F.3d

at 1205; see also Kelly v. Borough of Carlisle, 622 F.3d

248, 259 n.7 (3d Cir. 2010). Others, however, have

expressed concerns that important differences exist

for First Amendment purposes between overt and

surreptitious recordings. ACLU v. Alvarez, 679 F.3d

583, 595 (7th Cir. 2012); see also Brinsdon v. McAllen

Indep. Sch. Dist., 863 F.3d 338, 343-44, 352-53 (5th

Cir. 2017). This Court must grant certiorari to ensure

all citizens throughout the nation enjoy the same First

Amendment rights, and all government officials—

4

particularly federal officials—are subject to the same

degree of public scrutiny and accountability.

This Court should also grant certiorari to clarify

the proper scope of relief in First Amendment cases.

The district court granted narrow relief by holding

§ 99(C) unconstitutional as applied to certain covert

recordings of police officers in public areas. Pet. App.

66-67. It refused Petitioner Project Veritas Action

Fund’s request to hold the law facially

unconstitutional. In crafting such narrow relief, the

First Circuit not only has forced future rightholders to

litigate to seek judicial protection for their First

Amendment right to engage in surreptitious

recordings, but also established content-based

protections that squarely violates First Amendment

principles. Reed v. Town of Gilbert, 576 U.S. 155, 163,

165 (2015). This Court should grant certiorari to

clarify the availability of facial relief in First

Amendment cases. Cf. Bd. of Airport Comm’rs v. Jews

for Jesus, 482 U.S. 569, 575-76 (1987).

STATEMENT OF THE CASE

Section 99 of the Massachusetts General Laws

makes it illegal for “any person” to “willfully

commit[]”or “attempt[] to commit an interception . . .

of any wire or oral communication,” or to “procure[]

any other person” to do so. Mass. Gen. Laws ch. 272,

§ 99(C)(1). The term “interception” means “to secretly

hear” or “secretly record . . . the contents of any wire

or oral communication through the use of any

intercepting device,” or to “aid another” in doing so,

without the prior consent of all parties to the

communication. Id. § 99(B)(4).

5

The statute is sweepingly overbroad. The Supreme

Judicial Court of Massachusetts has held, for example,

that it prohibits a person from secretly recording a

ransom call from a kidnapper. Commonwealth v.

Jackson, 349 N.E.2d 337, 340 (Mass. 1976). Or a

father from secretly recording conversations between

his 15-year-old son and the 57-year-old pervert who

had been molesting him for several years to provide to

the police, Commonwealth v. Barboza, 763 N.E.2d 547,

551-52 (Mass. App. 2002). Massachusetts courts have

emphasized

the

recorded

“conversation

or

communication need not be intelligible”; a defendant

may be prosecuted even where a recording

incidentally picks up only “isolated words.”

Commonwealth v. Wright, 814 N.E.2d 741, 744 (Mass

App. 2004).

The statute has repeatedly been used to punish

Massachusetts citizens for attempting to record their

interactions

with

government officials. The

Massachusetts Supreme Court Judicial Court, for

example, has upheld the convictions of a motorist who

secretly recorded a “confrontational” traffic stop by

local police officers, Commonwealth v. Hyde, 750

N.E.2d 963, 964-65 (Mass. 2001), and a political

protestor who recorded his conversation with a police

officer during a rally without expressly pointing out

his lapel microphone, Commonwealth v. Manzelli, 864

N.E.2d 566 (Mass. App. 2007). In Damon v. Hukowicz,

964 F. Supp. 2d 120, 128, 139 (D. Mass. 2013), the

court concluded that a reasonable jury could apply the

statute to a bicyclist who recorded his interaction with

police, even though the police had also recorded the

same interaction. Likewise, a federal district court

allowed police officers to sue a citizen for secretly

6

recording them during his “arrest, transport and

booking.” Gouin v. Gouin, 249 F. Supp. 2d 62, 79 (D.

Mass. 2003); cf. Commonwealth v. Camilli, No. 10-P1155, 2012 Mass. App. Unpub. LEXIS 477, at *3

(Mass. App. Apr. 17, 2012) (assuming a secret

recording of paying extortion money to a police officer

violated Section 99).

The statute’s reach extends to interactions with

government agents other than police officers, however.

In Denicola v. Potter, No. 19-cv-11391-ADB, 2020 U.S.

Dist. LEXIS 114540, at *2, 11-12 (D. Mass. June 30,

2020), the district court held that the statute validly

applied to a citizen who attempted to generate a record

of the information he was being told by a court clerk

by recording a phone call; he had notified one of the

employees with whom he spoke about the recording,

but not others. In short, Massachusetts courts have

vigorously applied the law in a variety of context to

prevent

citizens

from

generating

accurate,

incontrovertible records of their interactions with

governmental officials.

7

ARGUMENT

I.

THIS

COURT

SHOULD

GRANT

CERTIORARI

TO

AFFIRM

THE

FUNDAMENTAL FIRST AMENDMENT

RIGHT TO SURREPTITIOUSLY RECORD

GOVERNMENT

OFFICIALS

AND

EMPLOYEES.

Smartphones with audio and video recording

capabilities have become ubiquitous. The Internet

allows audio and video clips to be transmitted around

the world in an instant. Within days, the dramatic

video of George Floyd’s death galvanized a nationwide

movement for police reform, see Cheryl Corley, 1 Year

Later, The Video of George Floyd Death Has Lasting

Impacts, NPR (May 7, 2021, 5:03 AM ET),

https://www.npr.org/2021/05/07/994539600/1-yearlater-the-video-of-george-floyds-death-has-lastingimpacts. The right to record interactions,

conversations, and events—whether overtly or

surreptitiously—in a place where a person has the

right to be has evolved into a crucial aspect of the

ability to engage in both political and public dialogue.

This challenge squarely and concretely presents the

question of whether the First Amendment protects the

right to record one’s observations and recollections not

only in written form, but recorded media, as well.

This Court should grant certiorari to dispositively

construe the First Amendment, establishing a

uniform nationwide rule that recordings taken from a

location where a person has the right to be are entitled

to full First Amendment protection. A deep circuit

split currently exists on the issue, leading to

8

disparities in constitutional rights for citizens in

different jurisdictions. These inconsistent rulings

likewise subject government officials—particularly

federal officials—to varying degrees of public

oversight, scrutiny and, ultimately, accountability for

their actions. With the critical role that surreptitious

recordings have come to play in our public discourse,

certiorari is warranted.

A. This Court Should Hold that the Right to

Record in a Place Where a Person

Otherwise Has the Right to Be Present is

a Form of Free Speech, and Restrictions

are Subject to Strict Scrutiny.

The First Circuit reviewed the challenged

prohibition on surreptitious recordings under

intermediate scrutiny. Pet. App. 46-47. Applying this

misguided approach, rather than flatly invalidating

§ 99(C), the court entered a narrow injunction

preventing the statute from being applied only in the

context of recordings of police officers in public places.

This Court should grant certiorari because direct

speech-related prohibitions such as § 99(C) are subject

to strict scrutiny, and facially unconstitutional.

1. This Court has held that the First Amendment

protects a wide range of expression,3 including not

only literal “speech,” U.S. CONST. amend. I, recorded

communications such as cable television shows,

3 This Court has incorporated the First Amendment through the

Fourteenth Amendment’s Due Process Clause to be enforceable

against the states. See Near v. Minnesota, 283 U.S. 697 (1931)

(Press Clause); Gitlow v. New York, 268 U.S. 652 (1925) (Speech

Clause).

9

United States v. Playboy Entm’t Group, 529 U.S. 803,

813 (2000), videos, United States v. Stevens, 559 U.S.

460, 481-82 (2010), and movies, Joseph Burstyn v.

Wilson, 343 U.S. 495, 501-02 (1952). It also protects a

person’s decision to reproduce and re-convey “speech

generated by other persons,” Hurley v. Irish-Am. Gay,

Lesbian and Bisexual Group of Boston, 515 U.S. 557,

570

(1995),

including

third

parties’

paid

advertisements, N.Y. Times Co. v. Sullivan, 376 U.S.

254, 265-66 (1964). Under these precedents, the First

Amendment guarantees the right to disseminate video

and audio recordings involving the speech of other

people. See Barnicki v. Vopper, 532 U.S. 514, 518-19,

534-35 (2001) (holding that the First Amendment

protected the right of a radio commentator to play an

illegally obtained recording of teacher’s union leaders

discussing contentious contract negotiations).

2. A person generally has a First Amendment right

to discuss government officials and matters of public

concern. Mills v. Alabama, 384 U.S. 214, 218 (1966).

They also have the fundamental right to transcribe

verbatim accounts of their encounters with

government officials or interactions they observe

involving government officials. The First Amendment

likewise protects the right to draw detailed artistic

sketches of what they observe, including government

officials’ actions. See Kaplan v. California, 413 U.S.

115, 119-20 (1973) (“Pictures, films, paintings,

drawings, and engravings . . . have First Amendment

protection.”).

The constitutional question here is whether the

First Amendment allows the state to relegate those

who see and hear events to their memories, written

notations, and even sketches, or instead guarantees

10

the right to memorialize those observations in a more

reliable, robust, and resonant format. See Seth F.

Kreimer, Pervasive Image Capture and the First

Amendment: Memory, Discourse, and the Right to

Record, 159 U. PA. L. REV. 335, 409 (2011) (“[T]he First

Amendment protects the right to record images we

observe as part of the right to form, reflect upon, and

share our memories.”); see also Margot E. Kaminski,

Privacy and the Right to Record, 97 B.U. L. REV. 167,

232 (2017) (“In a public forum, courts should

acknowledge that the right to record exists, regardless

of whether the subject of the recording is a matter of

public concern.”). “Like prohibitions on sketching,

taking notes, or memorializing observations in a

diary,” laws such as § 99(C) “bar individuals who have

already acquired information from preserving it for

future review, reflection, and dissemination.”

Kreimer, supra at 391-92.

The First Amendment does not allow the

Government to require citizens to memorialize their

observations in a categorically less effective form,

thereby hindering their future attempts to

communicate and convey their experiences. See

United States v. Int’l Union United Auto., Aircraft &

Agri. Implement Workers, 352 U.S. 567, 596 (1957)

(Douglas, J., dissenting) (declaring First Amendment

protections should not be limited to “meaningless

mouthings of ineffective speakers”). The very purpose

of the First Amendment is “to preserve an uninhibited

marketplace of ideas in which truth will ultimately

prevail.” Red Lion Broad. Co. v. FCC, 395 U.S. 367,

390 (1969). Prohibiting speakers from being able to

generate the types of communications—surreptitious

videos—most likely to accurately convey truthful

11

information, particularly about governmental actors,

is antithetical to First Amendment values. See Wesley

J. Campbell, Speech-Facilitating Conduct, 68 STAN. L.

REV. 1, 50-51 (2016). Videos can convey the full

texture of a situation in a way that mere words cannot

capture, and can appeal to a viewer in a more

immediate manner than unadorned text. Cf. Cohen v.

California, 403 U.S. 15, 26 (1971) (“We cannot

sanction the view that the Constitution, while

solicitous of the cognitive content of individual speech,

has little or no regard for that emotive function which,

practically speaking, may be often the more important

element of the overall message sought to be

communicated.”).

This Court recognized the unique power of

recordings in Scott v. Harris, 550 U.S. 372 (2007).

When substantial disputes of material fact exist in a

case, a court must deny summary judgment and allow

the jury to resolve the issue. See FED. R. CIV. P. 56(c).

Nevertheless, due to the unique probative qualities of

a video, it can be powerful enough to entitle a movant

to summary judgment. A video can make a jury’s

decision to disbelieve certain facts or adopt a contrary

version of events unreasonable and erroneous as a

matter of law. Scott, 550 U.S. at 380-81 (“Respondent’s

version of events is so utterly discredited by the record

that no reasonable jury could have believed him. The

Court of Appeals . . . should have viewed the facts in

the light depicted by the videotape.”).

The right to display audio and video recordings

implies a generally concomitant right to create them.

Without surreptitiously recording government

officials’ actions and statements, it is impossible for a

citizen to indisputably convey what actually occurred.

12

Revealing the recording device often may often lead

abusive officials to temporarily alter their speech and

behavior to avoid generating evidence of their

wrongdoing and evade accountability. See Kaminski,

supra at 202 (explaining how the knowledge of being

recorded can lead people to change their behavior).

Failing to record the speech or interactions at all will

lead to he-said, she-said situations in which

government officials often enjoy the patina of

credibility. See Howard M. Wasserman, Orwell’s

Vision: Video and the Future of Civil Rights

Enforcement, 68 MD. L. REV. 600, 618-19 (2009).

Allowing surreptitious recording of government

actors also deters them from committing

constitutional or statutory violations, or abusing their

authority by acting rudely and dismissively. As with

the right to a public trial, “the sure knowledge that

anyone is free to” secretly record government officials

“gives assurance that established procedures are

being followed and that deviations will become

known.” Press-Enter. Co. v. Superior Court of Cal., 464

U.S. 501, 508 (1984). It also empowers individual

citizens, allowing them to offset the power imbalances

that exist with government officials, including police.

See Jocelyn Simonson, Beyond Body Cameras:

Defending a Robust Right to Record the Police, 104

GEO. L.J. 1559, 1564 (2016).

3. At a minimum, surreptitious recordings of

government officials are entitled to full First

Amendment protection as conduct that is a necessary

precursor to, and integrally intertwined with, speech.

A person cannot show a video unless they are

permitted to record it in the first place. The First

Amendment must protect the creation of the video to

13

the same extent as the right to view it. The First

Amendment is triggered by direct restrictions not only

on expression, but also conduct that has “a close

enough nexus to expression” or is “commonly

associated with expression.” Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 759 (1988). For example, a

licensing scheme which granted the mayor unbridled

discretion over whether to allow newspaper racks on

the municipality’s public sidewalks was held

unconstitutional, even though it did not directly

regulate literal speech or the content of publications.

Id. at 772. This Court reasoned it impermissibly

burdened “conduct commonly associated with speech.’

Id. at 759.

Likewise, this Court held a special use tax on ink

and paper violates the First Amendment. Minn. Star

& Trib. Co. v. Minn. Comm’r of Rev., 460 U.S. 575,

592-93 (1983). It explained that, although unused ink

and paper are themselves neither speech nor press

publications, the tax “burdens rights protected by the

First Amendment.” Id. at 582. In the landmark

campaign finance case Buckley v. Valeo, 424 U.S. 1

(1976) (per curiam), this Court held independent

expenditures were subject to full First Amendment

protect as pure speech, and restrictions on them were

generally subject to strict scrutiny. Id. at 44-45. The

funds used for independent expenditures was not

itself literally speech. Yet “the dependence of a

communication on the expenditure of money” neither

“operates itself to introduce a nonspeech element” nor

“reduce[s] the exact scrutiny required by the First

Amendment.” Id. at 16.

Surreptitious recordings of government officials

are likewise inextricably intertwined with important

14

political speech. See Anderson v. City of Hermosa

Beach, 621 F.3d 1051, 1061-62 (9th Cir. 2010)

(pointing out this Court has never “drawn a

distinction between the process of creating a form of

pure speech (such as writing or painting) and the

product of these processes (the essay or artwork) in

terms of the First Amendment protection afforded”);

see also ACLU v. Alvarez, 679 F.3d 583, 595 (7th Cir.

2012) (“The act of making an audio or audiovisual

recording is necessarily included within the First

Amendment’s guarantee of speech and press rights as

a corollary of the right to disseminate the resulting

recording.”). Prohibitions on such recordings

inherently prevent such recordings from being

displayed to others. Broad swaths of political

communications are categorically barred from even

coming into existence. Others are forced to take far

less effective forms—oral recountings often resulting

in “he-said, she-said” situations, in which the

speaker’s credibility is pitted against that of a

government official who offers a very different version

of events. See Kreimer, supra at 344 (“[B]roadly

available and marginally costless image capture

provides potential access to public dialogue for

individuals and groups without firm economic or

political bases or established public credibility.”);

Wasserman, supra at 618. As with other restrictions

on activities integrally intertwined with speech,

surreptitious recordings should be subject to strong

constitutional protection.

15

B. Deep Schisms Exist Among Different

Jurisdictions’ Treatment of Recordings

Under the First Amendment.

This Court should grant certiorari to address the

First Amendment’s applicability to secret recordings

of government officials in places where a person has

the right to be, since different jurisdictions have come

to differing conclusions on the issue. Several circuits

have recognized a right to record the police in public

places. See Fields v. City of Philadelphia, 862 F.3d

353, 356, 360 (3d Cir. 2017) (“[T]he First Amendment

protects the act of photographing, filming, or

otherwise recording police officers conducting their

official duties in public. . . . subject to reasonable time,

place, and manner restrictions.” (quotation marks

omitted)); Turner v. Driver, 848 F.3d 678, 688 (5th Cir.

2017) (“First Amendment principles, controlling

authority, and persuasive precedent demonstrate that

a First Amendment right to record the police does

exist, subject only to reasonable time, place, and

manner restrictions.”). Some jurisdictions, however,

have gone further, recognizing a broader right to

“record matters of public interest,” including those

involving “public officials . . . on public property.”

Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir.

2000); see also Fordyce v. City of Seattle, 55 F.3d 436,

439 (9th Cir. 1995).

Beyond these differences in the conception of the

underlying right, sharper disagreement exists over

the precise issue presented in this case—whether the

First Amendment protects the right to make

surreptitious recordings of public officials in places a

person has the right to be. The Ninth Circuit has

16

expressly recognized that the First Amendment

protects the right to make “secret[] film[s]” in places

where the person creating the recording has

permission to be. Animal Legal Def. Fund v. Wasden,

878 F.3d 1184, 1190, 1205 (9th Cir. 2018). That court

explained, in a case about secret recordings, “It defies

common sense to disaggregate the creation of the

video from the video or audio recording itself. The act

of recording is itself an inherently expressive

activity . . . .” Id. at 1203; see also Kelly v. Borough of

Carlisle, 622 F.3d 248, 259 n.7 (3d Cir. 2010) (“[W]e

fail to see how the covert nature of a recording would

affect its First Amendment value . . . .”).

The Seventh Circuit, in contrast, has explicitly

drawn a “distinction between open and concealed

recording,” explaining “surreptitious recording brings

stronger privacy interests into play.” Alvarez, 679 F.3d

at 607 n.13. And in Brinsdon v. McAllen Independent

School District, 863 F.3d 338, 343-44, 352-53 (5th Cir.

2017), the Fifth Circuit held that the First

Amendment did not protect the right to make “secret

video recordings” of a public high school teacher in

Texas making students recite the Mexican Pledge of

Allegiance “with their right arms raised at a 90-degree

angle” to celebrate Mexican Independence Day.

The ruling below from the First Circuit stakes out

yet a different approach, affirming the right to secretly

make “recording[s] of police officers discharging their

official duties in public spaces,” Pet. App. 5, but

simultaneously refusing to hold more broadly that the

First Amendment “bars the secret, nonconsensual

audio recording of government officials discharging

their official duties in public,” id. Different circuits

have come to different conclusions concerning the

17

existence and scope of a First Amendment right to

secretly record government officials—particularly

government officials other than police officers—in

places a person has the right to be. This Court should

grant certiorari to resolve this growing circuit split

and establish a nationally uniform interpretation of

the First Amendment.

C. This Issue is Important and Warrants

Certiorari.

1. Surreptitious recordings have played a critical

role in shaping American political discourse in recent

years. Statutes such as § 99(C) and its counterparts in

other states have a tremendous chilling effect,

preventing citizen journalists and other ordinary

Americans from bringing progressive corruption,

liberal hypocrisy, and left-wing crime to light. For

example, it was surreptitious recording by Petitioner

Project Veritas itself that exposed the willingness of

multiple employees of the Obama-affiliated group4

ACORN—the

Association

of

Community

Organizations for Reform Now—to engage in illegal

conduct. See Clark Hoyt, The Acorn Sting Revisited,

N.Y.

TIMES

(Mar.

20,

2010),

https://www.nytimes.com/2010/03/21/opinion/

Among numerous other connections, then-Presidential

candidate Barack Obama had paid $800,000 to an ACORN

subsidiary to fund get-out-the-vote efforts, then attempted to

obfuscate the transaction by misrepresenting the purpose of

those payments to the FEC. See David M. Brown, Obama to

Amend Report on $800,000 in Spending, TRIB, LIVE (Aug. 22,

2008, 12:00 AM), https://archive.triblive.com/news/ obama-toamend-report-on-800000-in-spending/.

4

18

21pubed.html. Project Veritas’ more recent secret

recordings of CNN personnel unmasked the network’s

partisan biases, revealing CNN personnel of bragging

the network purposefully created “propaganda” to get

“Trump out” of office. Joseph A. Wulfsohn & Brian

Flood, CNN Staffer Admits Network’s Focus was to

“Get Trump Out of Office,” Calls Its Coverage

“Propaganda,” FOX NEWS (Apr. 13, 2021),

https://www.foxnews.com/media/cnn-staffernetworks-trump-office-coverage-propaganda; cf. PBS

Lawyer Resigns After Being Caught in Veritas Sting,

NEWS

(Jan.

12,

2021),

AP

https://apnews.com/article/donald-trumpentertainment-coronavirus-pandemic8f586d687ab332777a7a059457ff818e.

Amicus AIM has similarly relied on surreptitious

recordings to uncover crime and fully inform the

public. In 2020, for instance, an AIM reporter secretly

recorded a staffer admitting the campaign of

Democratic candidate for the U.S. Senate from Iowa,

Theresa Greenfield, was allegedly violating federal

campaign finance law by apparently misrepresenting

illegal excessive in-kind contributions paid for by the

Iowa Democratic Party as permissible volunteer

services. Jonathan Garber, Iowa Sen. Ernst’s

Democratic Challenger Accused of Breaking

Campaign Finance Rules for 3rd Time, FOX NEWS

(Oct. 21, 2020), https://www.foxnews.com/politics/senernst-dem-rival-fec-complaint-third-time.

AIM similarly used surreptitious recording to help

Iowa voters make more fully informed choices when

casting their ballots. Greenfield had refused to

publicly take a position on Black Lives Matter, the

group responsible for riots and destruction throughout

19

the nation over this past year. See Mike Gonzalez, For

Five Months, BLM Protestors Trashed American’s

Cities. After the Election, Things May Only Get Worse,

HERITAGE

FOUND.

(Nov.

6,

2020),

https://www.heritage.org/progressivism/commentary/

five-months-blm-protestors-trashed-americas-citiesafter-the-election. Thanks to its surreptitious

recording, AIM was able to show Iowa voters footage

of both Greenfield and her husband declaring her

enthusiastic support of the group. Accuracy in Media

Exposes Iowa Senate Candidate, ACCURACY IN MEDIA

https://www.aim.org/action(Oct.

13,

2020),

alert/accuracy-in-media-exposes-iowa-senatecandidates-support-for-black-lives-matter/.

Amicus

the Leadership Institute has similarly relied on

surreptitious recordings to expose incidents of abuse

against students for expressing conservative political

views on college campuses.

2. This case deals with perhaps one of the most

important constitutional issues of the Twenty-First

Century. Video recordings of police specifically, and

government officials and political candidates more

broadly, are playing an ever-increasing role in both

public discourse and democratic self-governance.

Journalists and everyday citizens must have a clear

understanding of the scope of their rights. These

rights should be consistent across the nation, rather

than varying from state to state based on differences

in state law, or circuit to circuit based on conflicting

precedents. National uniformity is especially critical

insofar as citizens seek to surreptitiously record

federal officials.

Such secret recordings can help citizens hold

officials accountable. See Huma Khan & Z. Byron

20

Wolf, NPR CEO Vivian Schiller Resigns After Hidden

Camera Sting Snares Top Fundraiser, ABC NEWS

(Mar.

9,

2011,

7:04

AM),

https://abcnews.go.com/Politics/npr-ceo-vivianschiller-resigns-james-okeefe-orchestrated/story?

id=13092007 (“NPR’s embattled chief executive

resigned today after the top fundraiser for NPR said

offensive things about Republicans and the Tea Party

during an undercover sting orchestrated by

conservative activist James O’Keefe.”). They can

uncover and deter public corruption. Cf. Alex

DeMarban, Pebble CEO Tom Collier Resigns After

Release of Secretly Recorded Videos that Show Him

Talking About His Ties to Alaska Politicians and

Regulators, ANCHORAGE DAILY NEWS (Sept. 23, 2020),

https://www.adn.com/business-economy/2020/09/23/

pebble-ceo-tom-collier-resigns-after-release-ofsecretly-recorded-videos/.

They can reveal far-left racist indoctrination of

public school teachers and students. See Michael Lee,

San Diego School District Trains White Teachers that

They “Spirit Murder” Black Children and Need

“Antiracist Therapy,” WASH. EXAMINER (Jan. 6, 2021,

2:15 PM), https://www.washingtonexaminer.com/

news/san-diego-teachers-spirit-murder-blackchildren; cf. Michael Levenson, A Psychiatrist Invited

to Yale Spoke of Fantasies of Shooting White People,

N.Y. TIMES (June 6, 2021) (article based on

unauthorized release of video of an online lecture to

which

Yale

had

restricted

access),

https://www.nytimes.com/2021/06/06/nyregion/yalepsychiatrist-aruna-khilanani.html. They can guide

voters’ electoral decisions. See Peter Wade, Secret

Recording Exposes Intelligence Chairman Warning

21

Donors About Coronavirus 3 Weeks Ago, ROLLING

STONE

(Mar.

19,

2020,

2:05

ET),

https://www.rollingstone.com/politics/politics-news/

secret-recording-intelligence-chairman-warningdonors-about-coronavirus-weeks-ago-969767/.

And

they can even provide a foundation for civil rights

suits under Bivens v. Six Unnamed Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971).

This Court has recognized, “[F]reedom of speech

and of the press. . . [are] among the fundamental

personal rights and liberties.” Thornhill v. Alabama,

310 U.S. 88, 95 (1940). Citizens’ rights to covertly

record events and conversations—particularly those

involving government officials—in places they have

the right to be should not vary by jurisdiction.

Similarly, federal officials should not enjoy fluctuating

levels of protection from surreptitious recording based

on where they happen to live or work. Such variation

could lead to particularly pernicious consequences for

elected officials, as U.S. Representatives and U.S.

Senators from some states—but not others—would be

asymmetrically subject to the possibility of public

accountability and electoral repercussions from

constitutionally protected surreptitious recordings.

The First Amendment issues in this case warrant

certiorari.

II.

THIS

COURT

SHOULD

GRANT

CERTIORARI TO CLARIFY THE NEED

FOR

FACIAL

RELIEF

IN

FIRST

AMENDMENT CASES.

In addition to ruling whether the First Amendment

protects the right to use the defining technology of our

22

era—the smartphone—to surreptitiously record

government officials, this case presents the perfect

vehicle for this Court to address important questions

of constitutional remedies. The challenged provision,

in relevant part, makes it a crime for “any person” to

“willfully commit[]”or “attempt[] to commit an

interception . . . of any wire or oral communication.”

Mass. Gen. Laws ch. 272, § 99(C)(1). The term

“interception” means to use an “intercepting device” to

“secretly

hear”

or

“secretly

record”

any

communication. Id. § 99(B)(4).

The First Circuit correctly recognized that, at a

minimum, this law “violates the First Amendment by

prohibiting the secret, nonconsensual audio recording

of police officers discharging their official duties in

public spaces.” Pet. App. 5. It refused to hold § 99(C)

facially unconstitutional, however, instead holding it

unconstitutional as applied only in those

circumstances. Id. at 59 (affirming rejection of First

Amendment overbreadth challenge); see also id. at 6667. This Court should grant certiorari to overturn this

error and clarify the proper standard for facial relief

in First Amendment cases.

The First Circuit’s approach provides scant

protection for First Amendment rights. The court

embraced an approach where a citizen, reporter, or

private group must bring an as-applied challenge to §

99(C) every time they wish to surreptitiously record a

government official, other than a police officer in a

public location. To prevail, the plaintiffs will generally

be expected to describe in detail the nature of the

conversation or event they anticipate recording and

the location the recording will occur. As a practical

matter, the First Circuit’s wholly impracticable step-

23

by-step approach to the enforcement of fundamental

constitutional rights will make it impossible,

indefinitely, for most ordinary people to exercise their

fundamental First Amendment rights.

First, the need to surreptitiously record a

conversation, interaction, or event will often occur

unexpectedly. Rightholders need assurance of their

ability to record “at a particular time; eventual

[permission] would come ‘too little and too late.’” Plain

Dealer Publ’g Co., 486 U.S. at 772 (quoting Freedman

v. Maryland, 380 U.S. 51, 56 (1965)). Relegating

citizens, journalists, and others to case-by-case asapplied challenges renders First Amendment

protection for surreptitious recording largely

nugatory. In Citizens United v. FEC, 558 U.S. 310, 333

(2010), for example, this Court held the ban on

independent expenditures by corporations was facially

unconstitutional, rather than issuing a narrow, asapplied ruling based on the type of communication

proposed by Appellant Citizens United. It explained:

A speaker’s ability to engage in political

speech that could have a chance of

persuading voters is stifled if the speaker

must first commence a protracted

lawsuit. By the time the lawsuit

concludes . . . litigants in most cases will

have neither the incentive nor, perhaps,

the resources to carry on . . . .

Id. at 334. These same considerations will often apply

to surreptitious recordings of government officials.

Requiring people to choose between protracted

litigation to bring a pre-enforcement as-applied

24

challenge to § 99(C), and facing the prospect of

prosecution for simply violating that law, is an

impermissible burden on First Amendment rights.

Second, requiring plaintiffs to file as-applied

lawsuits in order to obtains judicial declarations of

their constitutional rights undermines the value of

First Amendment protections for surreptitious

recordings. The whole point of a covert recording is to

generate a record of what a person naturally says and

does when they do not know witnesses will be able to

generate a dispositive record of events to show third

parties. Requiring litigants to sue in advance to avoid

the threat of prosecution will often provide notice to

the targets of the recordings, defeating the point of

surreptitious recordings.

Third, this Court’s precedents require statutes

with a broad, diverse range of unconstitutional

applications such as § 99(C) to be held facially

unconstitutional. See Sec’y of State of Maryland v.

Joseph H. Munson Co., 467 U.S. 947, 968 (1984).

Requiring “case-by-case adjudication” of First

Amendment challenges to § 99(C) through a “series of

adjudications” is “intolerable,” because it would give

rise to a “chilling effect . . . on protected speech” as

those cases are adjudicated. Bd. of Airport Comm’rs v.

Jews for Jesus, 482 U.S. 569, 576 (1987).

Fourth, perhaps most importantly, the First

Circuit’s

limited

as-applied

remedy

creates

unconstitutional content-based discrimination. Pet.

App. 66-67. Content-based discrimination with regard

to speech is generally unconstitutional. See Police

Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972). “A

law that is content based on its face is subject to strict

scrutiny regardless of the government’s benign

25

motive, content-neutral justification, or lack of

‘animus toward the ideas contained’ in the regulated

speech.” Reed v. Town of Gilbert, 576 U.S. 155, 165

(2015) (quoting Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 429 (1993)). As discussed earlier,

making recordings is a creative, expressive activity

protected by the First Amendment, and such

recordings are inextricably intertwined with—and

generate—communications that are also protected by

the First Amendment. See Smith, 212 F.3d 1333;

Fordyce, 55 F.3d at 439. Under the lower court’s

ruling, a person may engage in surreptitious

recordings only if the content of those recordings is

police officers engaged in official activities in another

place. Recordings of other governmental actors, or

other people in public places, fall outside the scope of

the ruling.

A restriction is content-based if it “target[s] speech

based on its communicative content.” Reed, 576 U.S.

at 163. For example, “a law banning the use of sound

trucks for political speech—and only political speech—

would be a content-based regulation, even if it

imposed no limits on the political viewpoints that

could be expressed.” Id. at 169. Here, the First

Circuit’s ruling selectively has extend constitutional

protection to surreptitious recordings with only one

sort of content: police officers performing official

functions in public spaces. In the guise of enforcing the

First Amendment, the lower court has created a

content-based discrimination repugnant to the First

Amendment. This Court should grant certiorari to

both remediate the lower court’s constitutional

violation and clarify the remedial principles that

govern First Amendment cases.

26

CONCLUSION

For these reasons, this Court should grant the

petition for certiorari in this case.

Respectfully submitted,

DAN BACKER*

CHALMERS & ADAMS LLC

441 N. LEE ST., SUITE 300

Alexandria, VA 22314

(202) 210-5431

dbacker@ChalmersAdams.com

Counsel of Record for

Amici Curiae

JUNE 2020