`
`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
`
`================================================================================================================
`co*ckLE LEGAL BRIEFS (800) 225-6964
`WWW.co*ckLELEGALBRIEFS.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 ir-
`replaceable and important form of newsgathering. Pro-
`ject Veritas Action Fund regularly uses secret audio
`recording to capture newsworthy information and re-
`port 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 acknowl-
`edging Project Veritas Action Fund would make the se-
`cret 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 circ*mstances 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 speech-
`suppressive law has the burden to precisely
`articulate every type of contemplated speech
`activity to satisfy ripeness for as-applied chal-
`lenges.
`
`
`
`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, Mas-
`sachusetts.*
`
`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 of-
`ficial capacity as Police Commissioner for the City of
`Boston.
`
`
`CORPORATE DISCLOSURE STATEMENT
`
`Project Veritas Action Fund has no parent corpo-
`
`ration 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. 16-
`10462-PBS, 244 F. Supp. 3d 256 (D. Mass.
`Mar. 23, 2017).
`
`
`* Respondent Rollins became Suffolk County District Attor-
`
`ney 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 & 16-
`10462-PBS, 340 F. Supp. 3d 87 (D. Mass. Dec.
`10, 2018).
`Martin v. Gross, Nos. 16-11362-PBS & 16-
`10462-PBS, 380 F. Supp. 3d 169 (D. Mass. May
`22, 2019).
`Project Veritas Action Fund v. Rollins, Nos. 19-
`1586, 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 PROVI-
`SIONS AT ISSUE .............................................
`INTRODUCTION ................................................
`STATEMENT OF THE CASE..............................
` A. Factual Background ..................................
`1. The Massachusetts Interception Stat-
`4
`ute ........................................................
`5
`2. The Petitioner ......................................
`8
` B. Legal Background ......................................
`8
`1. The District Court Proceedings ...........
`9
`2. The First Circuit’s Panel Decision ......
`REASONS FOR GRANTING THE PETITION ..... 11
`
`I. Certiorari Should Be Granted to Resolve
`Conflicts Regarding the First Amendment
`Overbreadth Doctrine ................................ 11
`
`2
`2
`4
`4
`
`
`
`v
`
`TABLE OF CONTENTS—Continued
`
`Page
`A. There Exists a Direct Conflict Be-
`tween the First Circuit and the Illinois
`Supreme Court as to Whether an Un-
`equivocal Ban of Secret Recording is
`Overbroad ............................................ 11
`B. The First Circuit’s Overbreadth Doc-
`trine Imposes an Insolvable Constitu-
`tional Calculus and is in Conflict with
`Four Other Circuits ............................. 17
` II. Certiorari Should Be Granted to Resolve a
`Conflict Between the Circuits over Ripe-
`ness Standards Governing As-Applied,
`Pre-Enforcement First Amendment Chal-
`lenges ......................................................... 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 Ripe-
`ness Determinations in First Amend-
`ment Cases Necessitates Review ........ 37
`CONCLUSION ..................................................... 40
`
`APPENDIX
`APPENDIX A
`Opinion, U.S. Court of Appeals for the First Cir-
`cuit, filed December 15, 2020 ........................... App. 1
`APPENDIX B
`Memorandum Decision and Order Re: Declara-
`tory Judgment, U.S. District Court for the Dis-
`trict 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 Decem-
`ber 10, 2018 .................................................... App. 78
`APPENDIX D
`Memorandum Decision and Order Re: Plain-
`tiff ’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. Tax-
`payers 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 Com-
`munications 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 Over-
`breadth, 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”) re-
`
`spectfully 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 pub-
`
`lished at 982 F.3d 813 (1st Cir. 2020) and included in
`Petitioner’s Appendix (“App.”) at 1. The relevant deci-
`sions 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 chal-
`lenge and one of its as-applied challenges on March 23,
`2017 and entered declaratory judgment on PVA’s re-
`maining as-applied challenge on May 22, 2019. App.
`120; App. 68. PVA filed a timely appeal to the First Cir-
`cuit, 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 dis-
`missal of one of PVA’s as-applied challenges and re-
`versed 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 Gen-
`
`eral 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
`circ*mstances, 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
`circ*mstances in Massachusetts commit a felony. Felo-
`nious 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 record-
`ing 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 “wid-
`est 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 par-
`ties—recordings made via bona fide eavesdropping
`onto private communications—are protected by the
`First Amendment over governmental interests in pri-
`vacy. 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 al-
`lege overbreadth.
`
`Combined with its ruling on overbreadth, the First
`
`Circuit’s as-applied holdings effectively insulate Sec-
`tion 99 from judicial review. PVA provided a detailed
`complaint and assembled an extensive evidentiary rec-
`ord 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 con-
`cerns. This is in conflict with five other circuits—with
`two finding ripeness on nearly identical facts in pre-
`enforcement, 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 stand-
`ards 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 communica-
`tions 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 Bi-
`ography of a Bookie Joint, YOUTUBE, Oct. 31, 2015,
`https://youtu.be/7kAMVa3uMwo?t=1082 (1962 CBS Mas-
`sachusetts 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 communi-
`cations. 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 circ*mstances
`with a reasonable expectation of privacy, or with a rea-
`sonable 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 fore-
`
`front of undercover investigative journalism. App. 166.
`Its newsgathering techniques involve secretly record-
`ing speech, or intercepting oral communications as de-
`fined 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 nu-
`
`merous 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 po-
`litical consultants who endeavored to make protests
`coordinated with a political party appear to be grass-
`roots 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 peo-
`ple. 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 oper-
`atives 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 po-
`
`litical operations, public protests, and violence, partic-
`ularly focusing on the activities of “Antifa,” or the so-
`called “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 oc-
`curred 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 Massa-
`chusetts 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 jour-
`nalists would intercept oral communications in Massa-
`chusetts 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 Four-
`teenth 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 of-
`ficial duties while in public places. 2JRA737; see Mar-
`tin 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.
`2 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 in-
`cluded in the appendix. App. 165.
`
`
`
`9
`
`The district court dismissed PVA’s claims that
`
`Section 99 is facially overbroad or that it is unconsti-
`tutional 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 Sec-
`tion 99 is unconstitutional as applied to the secret re-
`cording 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 Amend-
`ment. App. 41. The court found Section 99 to be content
`neutral, and also considered its tailoring related to in-
`dividual privacy. App. 48–51. It discussed this strictly
`in relation to secretly recording law enforcement offic-
`ers and those in their vicinity. App. 51–57. “[A]n indi-
`vidual’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 record-
`ing 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 uncon-
`stitutional application, but the court found that
`these were not “ ‘substantial’ relative to the exten-
`sive range of applications [PVA] does not even chal-
`lenge.” App. 59.
`
`The court then ruled that PVA’s as-applied chal-
`
`lenges 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 gov-
`ernment officials engaged in their duties in public
`places because “[PVA] gives no indication that it in-
`tends 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 rec-
`ord, and repeated acknowledgement by the First Cir-
`cuit 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 as-
`applied 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 communi-
`cations under any circ*mstances by individuals is fa-
`cially 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 proceed-
`ing 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 circ*mstances 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 pri-
`vate and not subject to recording even if the partici-
`pants themselves have no expectation of privacy.”
`Clark, 6 N.E.3d at 160. This reading matched the in-
`terpretation of the Massachusetts statute—Section
`99—by the commonwealth’s court of last resort to “pro-
`hibit 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 scru-
`tiny, which requires that a law “will be sustained under
`the first amendment if it advances important govern-
`mental 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 determine
