Project Veritas Action Fund v. Rollins, Martin v. Rollins, No. 19-1586 (1st Cir. 2020)
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In these consolidated appeals concerning the "categorical and sweeping nature" of Mass. Gen. Laws ch. 272, 99, the First Circuit affirmed the district court's ruling that Section 99 violates the First Amendment in criminalizing the secret, nonconsensual audio recording of police officers discharging their official duties in public spaces, holding that the district court properly accounted for the values of both privacy and accountability within our constitutional system.
Section 99 makes it a crime to record another person's words secretly and without consent, but Massachusetts does not recognize any exceptions based on whether that person has an expectation of privacy in what is recorded. In 2016, two sets of plaintiffs - the Martin Plaintiffs and Project Veritas Action Fund - filed suit alleging that Section 99 violates the First Amendment. The First Circuit (1) affirmed the district court's grant of summary judgment to the Martin Plaintiffs; and (2) affirmed the district court's order dismissing Project Veritas's First Amendment overbreadth challenge for failing to state a claim but vacated on ripeness grounds the dismissal with prejudice of Project Veritas's remaining First Amendment challenges to the statute and remanded with instructions to dismiss the claims without prejudice for lack of subject matter jurisdiction.
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