First Circuit Upholds Lower Court Decision That Tape of Arrest, Warrentless Search Posted on Website Protected by First Amendment

July 26, 2007

The First Circuit Court of Appeals has ruled that a political activist is likely to prevail on the merits, and is entitled to a preliminary injunction preventing the Massachusetts State Police from prosecuting her from posting a tape on her Web site showing an arrest and warrantless search.

“This case presents the question of whether the First Amendment preventsMassachusetts law enforcement officials from interfering with anindividual’s internet posting of an audio and video recording of anarrest and warrantless search of a private residence, when theindividual who posted the recording had reason to know at the time sheaccepted the recording that it was illegally recorded. The appellantstate police officers challenge the district court’s grant of apreliminary injunction enjoining them from taking any action thatinterferes with appellee Mary Jean’s posting of the recording on awebsite. We find this case materially indistinguishable from theSupreme Court’s decision in Bartnicki v. Vopper,532 U.S. 514 (2001), and thus conclude that Jean has a reasonablelikelihood of success on the merits of her claim that the FirstAmendment protects the posting of a recording under such circumstances.Consequently, we uphold the preliminary injunction….Under 28 U.S.C. §1292(a)(1), we have jurisdiction tohear an interlocutory appeal of an order granting a preliminaryinjunction. We review the grant or denial of a preliminary injunctionfor abuse of discretion….In considering the motion for a preliminary injunction,a district court weighs four factors: (1) the plaintiff’s likelihood ofsuccess on the merits; (2) the potential for irreparable harm in theabsence of an injunction; (3) whether issuing an injunction will burdenthe defendants less than denying an injunction would burden theplaintiffs;and (4) the effect, if any, on the public interest…. The police contest only the firstfactor: Jean’s likelihood of success on the merits. That inquiry is themost important part of the preliminary injunction assessment: “[I]f themoving party cannot demonstrate that he is likely to succeed in hisquest, the remaining factors become matters of idle curiosity.”… Moreover, to the extent that the policecould have argued that the other three factors assist in demonstratingabuse of discretion by the district court, they have now waived thosearguments by failing to raise them on appeal. Thus, the question before us is whether the districtcourt erred in granting a preliminary injunction prohibiting theenforcement of Mass. Gen. Laws ch. 272, §99 against Jean for herreceipt and internet posting of the audio/video recording of Pechonis’arrest. Like the district court, we evaluate whether, in light of therecord before us, she has a reasonable likelihood of success on themerits.”

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” As a preliminary matter, we note that, like the statutes in question in Bartnicki, section 99 is a “content-neutral law of general applicability,” id.at 526. It “does not distinguish based on the content of theintercepted conversations, nor is it justified by reference to thecontent of those conversations.” Id. Like the delivery of the recording in Bartnicki, which the Court analogized to “the delivery of a handbill or a pamphlet,” id. at 527, section 99’s prohibition against disclosure also constitutes a regulation of “pure speech.” As did the Court in Bartnicki,we consider the interests implicated by the disclosure of theinformation. With respect to the state’s interest in protecting theprivacy of its citizens, the privacy interests discussed in Bartnicki are less compelling here. Bartnicki emphasized the importance of “encouraging the uninhibited exchange of ideas and information among private parties,” id. at 532, and of avoiding the “‘[f]ear or suspicion that one’s speech is being monitored by a stranger,’” id.at 533 (quoting President’s Commission on Law Enforcement andAdministration of Justice, The Challenge of Crime in a Free Society 202(1967)). This interest in protecting private communication is clearlyimplicated by the interception of a private cell phone conversation in Bartnicki.However, this interest is virtually irrelevant here, where theintercepted communications involve a search by police officers of aprivate citizen’s home in front of that individual, his wife, othermembers of the family, and at least eight law enforcement officers. Moreover, the state’s interest in deterring illegalinterception by punishing a subsequent publisher of information —already accorded little weight by the Court in Bartnicki — receives even less weight here, where the identity of the interceptor is known. In Bartnicki,the government argued that punishing a subsequent publisher ofinformation “remov[es] an incentive for parties to intercept privateconversations” by deterring would-be publishers of illegallyintercepted material and thus reducing the demand for such material. Id.at 529-30 & n.17. This argument rested, in part, on the assumptionthat the interceptors themselves could not be punished because theiridentities usually were unknown. Unimpressed, the Court explained thatthe available evidence did not support this assumption of anonymity.First, the legislative record did not indicate that a significantnumber of interceptors were anonymous. Id.at 531 n.17. Moreover, fewer than ten of the 206 cases filed under §2511 (the federal wiretap statute) involved an anonymous interceptor. Id.Thus, the Court concluded that the relatively small number of anonymousinterceptors meant that it was not “difficult to identify the personsresponsible for illegal interceptions” and, consequently, not“necessary to prohibit disclosure by third parties with no connectionto, or responsibility for, the initial illegality,” id. Given this logic, there is a betterargument for prosecuting a subsequent publisher of information when theinterceptor is anonymous. In such a situation, the government is unableto punish the interceptor directly; punishing the subsequent publishermight be more justifiable as a deterrent. However, even after takinginto account the anonymity of the interceptor in Bartnicki,the Court held that “[a]lthough there are some rare occasions in whicha law suppressing one party’s speech may be justified by an interest indeterring criminal conduct by another, this is not such a case.” Id.at 530(citation omitted). Thus, where, as here, the identity of theinterceptor is known, there is even less justification for punishing asubsequent publisher than there was in Bartnicki.

On the public interest side of the equation, the broadinterest in permitting “the publication of truthful information ofpublic concern,” described in Bartnicki, id. at 534-35, applies here as well. The police do not deny that the event depicted on the recording —a warrantless and potentially unlawful search of a private residence —is a matter of public concern. The police also concede that, like the defendants in Bartnicki, Jean played no part in the illegal interception. Thus, the only possible ground for distinguishing this case from Bartnicki is the assertion of the police that Jean, unlike the defendants in Bartnicki, did not obtain the recording lawfully. The Massachusetts interception statute prohibits“willfully commit[ting]an interception,” Mass. Gen. Laws ch. 272, §99(C)(1), and “willfullydisclos[ing] … the contents of any wire or oral communication, knowingthat the information was obtained through interception,” id.§99(C)(3). It likewise forbids “permit[ting],” “participat[ing]in a conspiracy to commit,” or acting as an “accessory to a person whocommits” a violation of another subsection of the statute. Id.§99(C)(6). By willfully recording his arrest and then giving therecording to Jean, Pechonis arguably would have violated both section99(C)(1) and section 99(C)(3). Thus, the police argue, by voluntarilyaccepting the tape from Pechonis and then disseminating it, Jeanassisted, conspired, or served as an accessory to Pechonis’ violationof section 99(C)(3) and thereby independently violated section 99(C)(6).

“Elaborating on this point, the police contend that “thedisseminator’s knowledge, when she obtains the tape, of theinterceptor’s identity and of the unlawfulness of the interception isdeterminative of whether she has obtained it lawfully or unlawfully forpurposes of a Bartnicki analysis.” They emphasize that, in Bartnicki,the tape was placed anonymously in Yocum’s mailbox, and Yocum receivedthe tape without knowing its contents until after he played it. 532U.S. at 519. Thus, they argue, “[t]he break in the chain between theinterceptor and the defendants became the pivotal point in the Court’sbalancing of interests because the break meant that the defendants hadnot obtained the tape unlawfully.” In contrast, “Jean knowinglyparticipated in [Pechonis’]disclosure and became the essential but-for first link in the chain.”In short, appellants insist that the “essential distinction betweenthis case and Bartnicki” was that “[i]n Bartnicki,the interceptor had already disseminated the tape before Yocumpassively received it and disseminated it further; …. In the present case, it was Jean’s active collaboration with Pechonisthat made his unlawful dissemination possible in the first instance. We will assume that Jean’s conduct, viewed through theprism of section 99(C)(3) and section 99(C)(6), may have been unlawfulunder the Massachusetts statute. She disclosed to others the contentsof an oral communication that she knew had been recorded illegally, andshe arguably participated with Pechonis in a conspiracy to disclose thecontent of the illegally recorded oral communication. However, whetherJean’s conduct fell within the statute is not determinative — indeed,we note that the conduct of both Yocum and Vopper in Bartnicki would have fallen within thisstatute. Rather, the determinative question is whether the FirstAmendment, as applied by the Supreme Court in Bartnicki, permits Massachusetts to criminalize Jean’s conduct. On this question, we find the arguments of the police unpersuasive.

The police note correctly that, in Bartnicki,Yocum did not realize that the tape had been recorded illegally at thetime he received it in his mailbox. Yocum’s knowledge of the illegalityof the interception arose only later, when he listened to the tape.Although the police argue that this delay between the receipt of thetape and the recognition of its illegality caused a critical break inthe chain, the Supreme Court attached no significance to Yocum’sreceipt of the tape without knowledge of its contents. If thedisconnect in time between the receipt of the tape and the laterrecognition that the tape had been recorded illegally was critical tothe premise that Yocum had obtained the tape lawfully, the Court wouldhave distinguished between Yocum and Vopper, who received the tapedirectly from Yocum and thus knew the tape had been recorded illegallyat the time that he received it…. Like Vopper, Jean already had reason to know that the tapewas illegally intercepted at the time that she received it;consequently, the Court’s conclusion that Vopper obtained the tapelawfully applies equally to Jean.

The police still insist on a distinction between Jean and the defendants in Bartnicki because Jean’s “active collaboration”with Pechonis as the essential “first link” in the chain of dissemination distinguishes this case from Bartnicki.They contend that Jean “had the opportunity to prevent thedissemination”and that “no one farther down the chain would have the sameopportunity.” We also find this distinction unpersuasive. Critically,in Bartnicki, Yocum had the opportunity to prevent further disclosure. Although he did not know the tape was illegally intercepted when he received it, he had that knowledge at the time he disclosed thetape to the school board and Vopper. Thus, both Yocum and Jean couldhave prevented further dissemination by refusing to disclose the tape.In light of this similarity, the fact that Yocum received the tape“passively” and Jean received the tape “actively” is a distinctionwithout a difference: both made the decision to proceed with theirdisclosures knowing that the tape was illegally intercepted, yet theSupreme Court held in Bartnicki that such a knowing disclosure is protected by the First Amendment.

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“We conclude that the government interests in preserving privacy anddeterring illegal interceptions are less compelling in this case thanin Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki, whose publication of an illegally intercepted tape was protected by the First Amendment. Jean’s publication of the recording on her website is thus entitled tothe same First Amendment protection. Consequently, we agree with thedistrict court that Jean has a reasonable likelihood of success on themerits of her suit for a permanent injunction. The district court’sdecision to grant Jean’s request for a preliminary injunction is affirmed.”

Read the entire opinion here.