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.
