Web video case could render Mass. law unconstitutional

The Worcester Telegram & Gazette reported today on the extension until April 7 of the temporary restraining order Mary Jean won against the State Police regarding the posting of an arrest video to her web site. Read the article here or here.

In the article Richard Nangle reports that:

Houston lawyer Daniel J. Shea, who represents Ms. Jean, wants a federal court to rule that the state law in question is unconstitutional as it would apply to Ms. Jean. Mr. Shea said publication of the video served the public interest, because it revealed that state police did not show a warrant before searching Mr. Pechonis’ home, and that the case could establish a precedent.

The law in question (MGL Chapter 272: Section 99) applies to the “Interception of wire and oral communications.” The preamble states that it was crafted to fight organized crime.

The commentary on Blue Mass. Group on this issue when the story broke was prescient.

As alkali pointed out in his comment to this blog on Feb. 16 regarding Commonwealth v. Hyde:

The SJC opinion holding that that the law against recording private conversations without the consent of all parties extends to interactions with public officials acting in the course of their public duties was a great mistake.  Other states with similar statutes have not interpreted them in that fashion, as Chief Justice Marshall pointed out in her dissent.  Nonetheless, it is the law.

That said, there is at least some reason to think that a third party’s publication of that recording ought to be protected by the First Amendment and the Massachusetts Constitution, even if the recording is not permitted in the first instance.

An amicus curiae brief was submitted by William C. Newman & John Reinstein, for the American Civil Liberties Union of Massachusetts in that case.

Now that it looks like they might have another crack at interpreting this law the ACLU should be paying attention to Mary Jean’s case. There’s a lot at stake here for the blogosphere. Let’s hope that Richard Nangle or some other enterprising reporter gets the ACLU of Massachusetts to weigh in. And maybe one of these days the attorney general for the commonwealth will weigh in as well.

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Thu 18 Dec 7:30 PM