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<v ->SJC-13027,</v>

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Joseph A. Curtatone v. Barstool Sports and Kirk Minihane.

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<v ->Attorney Kesten.</v>

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<v Attorney Kesten>Wait, I'm I just sitting down</v>

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or standing up?

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<v ->You can stand up at the podium.</v>

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At that right there, yeap.

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<v ->May it please the court, good morning.</v>

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I am doubly thrilled,

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this is my first time in court in 11 months.

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In all places to be here.

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Thank you for having us.

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In Massachusetts the legislature decided

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that each party would have the right

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to control the recording of their voice.

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Either the...

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in this case the facts are simple and uncontroversial.

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What happened was as you know,

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there was a public dispute between mayor Joseph Curtatone

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and Barstool Sports, especially Mr. Portnoy.

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Mr. Minihane went to work for Barstool Sports.

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So Minihane says he tried to get an interview

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with the mayor Curtatone the mayor is not aware of this.

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And then Mr. Minihane decided to defraud Mr. Curtatone.

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<v ->Hey counsel,</v>

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I am behind you here, Justice Cypher.

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You can keep looking at the camera though

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but I'm the one asking you the question right now.

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And my question is we understand the facts of the case.

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Can you address the issue with regard to consent

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and well, not consent but secret secretly the term secretly

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in the statute and how that works with actual consent

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or fraudulent fraudulently obtained consent.

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And then my other question is going to be

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about the case from the federal circuit

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on the Veritas, Project Veritas and the recent finding

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that our statute is partially unconstitutional at least.

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Can you address those issues for me?

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<v ->Well, I don't believe the statute is unconstitutional.</v>

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<v ->Well, the federal court said in some cases it is.</v>

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So and this is involving the police officers

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and involving recording, secretly recording public officials

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in public spaces it's unconstitutional

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<v ->That fits our case actually perfectly</v>

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in the negative that is.

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If mayor, if the mayor Curtatone

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as a public official was making a speech

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was speaking in a public place about his duties,

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I agree with you that they would have no right to

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he could be recorded.

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What happened here was not that.

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This was a private phone conversation

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between mayor Curtatone and somebody he knew.

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There's all these nuances to these cases and in that,

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if somebody calls you doesn't tell you who they are

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and tells you they're going to record you,

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they don't need you to agree

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but if you keep talking, you have agreed, correct?

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That is how we interpret this.

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If you keep talking you agree.

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Even though you don't know who it is

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you've decided to let anybody record.

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In this circumstance that's not what happened.

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Mr. Minihane, didn't say he was,

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he identified himself falsely--

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<v ->Before you read that Mr. Kesten</v>

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but if this is,

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I mean it's a matter of public importance, right?

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Important enough for your client to want to you know,

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address the issue publicly.

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He's not speaking to his neighbor

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he's speaking to a reporter for the Boston Globe.

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So it's not really a private conversation

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it's a conversation on a public issue with a reporter.

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Doesn't that raise first amendment issues

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as the first circuit talks about in Veritas?

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<v ->I disagree it would raise,</v>

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it's odd answering your question without looking at you.

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<v ->Yeah no, you can look wherever you like</v>

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we're all in this sort of 360 process here

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so look anywhere.

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<v ->No, he was he agreed to speak to a reporter that he knew,</v>

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a friend.

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If you listen to the,

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if you listen to the conversation which we've attached,

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Mr. Minihane would go so far

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as to reference a mutual friend.

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So the conversation never would have happened.

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The secret is that he agreed

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to a conversation with Kevin Cullen,

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and then he had to,

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and he was deceived deliberately to say by Mr. Minihane.

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There's no first amendment issue here.

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<v ->Council,</v>

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how is your proposed interpretation of the statute

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any different than

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if the statute did not use the word secretly

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<v ->If the statute did not use the word secretly</v>

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that is--
<v ->Yeah,</v>

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that is the statute says,

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"secretly recording an oral communication

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by a person other than the person given authority".

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It seems to me that your interpreting

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secretly out of the statute

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and I'm trying to wonder, I'm wondering how

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that squares with the words of the statute.

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Because you're saying that the recording

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has to be by the person who was given authority

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in this case the Boston Globe reporter.

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Right?

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<v ->Yes.</v>

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<v ->Why, it says,</v>

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so that would be taken care of by this phrase

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"by a person other than a person given authority"?

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But the statute doesn't limit it is not limited that way.

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It requires that the recording be secret also.

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<v ->In this situation he sought authority</v>

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and the secrecy is the person who's recording it.

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<v ->So you're saying that secretly means the person</v>

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who's given authority.

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That is someone other than the person given authority.

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<v ->Yes if someone other if someone,</v>

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because here he sought authority.

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If he didn't seek authority

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if he just held up the phone, the Glik case.

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He held up the phone and the person recorded was aware

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that somebody it, the police officers

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the Common did not know it was Mr. Glik

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somebody was recording them

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they had a right to stop talking.

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They were given that right if they wanted to.

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If they wanted to keep talking they'd be recorded.

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That's the choice you make when somebody tells you.

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But when somebody lies to you about who they are,

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I mean if one of you, if a justice called another justice

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and said I'd like to record it just so I remember it

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likely you would say okay,

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if it turns out that that person

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was not who they said they were

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then it was a secret recording by me say.

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if I did it and pretended to be one of you.

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<v ->It just seems to me that you're reading</v>

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that secretly word out of the statute

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because you're saying secret needs to be

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by the person given authority.

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<v ->You can't lie.</v>

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You can't lie about who you are

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to get the conversation and the recording.

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That is--
<v ->Where's that</v>

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understandable morality infused into section 99?

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With section 99 it is intending

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he didn't know when secretly recorded.

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<v ->Yes.</v>
<v ->The mayor</v>

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was not secretly recorded.

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He understood he was being recorded.

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Your interpretation might be better I don't know.

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Although it has, here it's public policy

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and first amendment implications

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but the statute talks about secretly.

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If you know you're being recorded

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you're not secretly being recorded.

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<v ->But if you know you're being recorded by a person you know</v>

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then you are being secretly recorded by someone else.

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And I suggest to you--

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<v ->But doesn't that go too far right.</v>

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Because if you're in public

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if the mayor is in public

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anyone can stick their phone up in the air

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and ask him a question, right.

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He knows he's being recorded

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but he doesn't know who it is.

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And he also doesn't know who they're gonna share it with.

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He just knows he's being recorded, right?

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<v Attorney Kesten>You're right.</v>

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<v ->So it's, there isn't a knowledge</v>

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of knowing who's recording you there's just a knowledge

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of knowing you're being recorded, right?

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<v ->Correct.</v>

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Here's the issue though,

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if you know someone's recording you you don't know who it is

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your choice is to whether to keep talking.

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When you're induced to have a conversation

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by someone lying and saying

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they're somebody you know and trust

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that you have agreed to that, you have not.

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And you know that they are recording you

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and you know it,

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sensibly you kind of know what they might do with it

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but if somebody is tricking you--

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<v ->But isn't</v>
<v ->that's not okay.</v>

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<v ->there always a risk,</v>

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isn't there always a risk when you're being recorded

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that it's gonna be shared with somebody you don't trust.

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That's why recording is different

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from a normal conversation, right?

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<v ->I mean, if you can have a perfectly legal conversation.</v>

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I meet with you I sit down with you I say, may I record you?

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And I may betray your trust or--

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<v ->But Mr. Cullen could have given the tape to Barstool</v>

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or as reporters if he's gonna write about the story,

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he may comment he may ask Barstool for comments.

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That sort of even your client would expect

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if he thinks this is gonna result in a story, right.

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That it would result in a back and forth

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between Mr. Cullen and Barstool, right.

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I just, he knows he's being recorded

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and he knows that there isn't any control

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it's up to Mr. Cullen what he's gonna do with this, right?

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<v ->But your honor that's always true.</v>

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<v ->Mr. Kesten how do you get around the precedent we have</v>

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where we have a requirement,

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number one that it be secretly recorded

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then number two the consent issue.

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And keep in mind this is the wiretapping statute

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as you well know.

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And going back when it was enacted

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it was to authorize and not authorize police

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to tap into people's phones

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it's a surreptitious component of the statute.

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And just as Wendlandt pointed out

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I don't think what you're address,

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you're not addressing the secret part of it.

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You're kind of just conflating everything

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into what you want it to read.

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<v ->I don't think so.</v>

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I mean, I know we're accused of that in the brief.

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What I'm saying is it because of the fraud

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in identity and pretending to be someone

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that mayor Curtatone knew.

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That made the recording by him secret.

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Now you don't have to know who's recording

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absolutely too it's your choice.

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I got a call Friday, actually from a reporter

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who I didn't know who said, "may I record you?"

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I actually asked him, "how do I know it's you?"

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But I knew it was someone, I didn't know him

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and I agreed to go ahead, let him record me.

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But if that person had said they were someone

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that I know and trust, which happens all the time.

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And that person asked me to record and then I found out

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that this other person actually recorded it

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that's a secret recording.

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<v ->Counsel.</v>

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Don't we normally talk about

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when it comes to the construction of statutes

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then we give the words

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their everyday common understanding and definition.

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And this it just goes back to justice Lowy's point.

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Secret means secret means secret.

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And if we're now infusing it

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with this definition you're giving

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where there has to be some objectivity to it

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where you think it's actually the person who said,

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"I'm recording you"

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and if it's not, then therefore it's secret.

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Doesn't that create all of the mischief we talk about

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when we don't afford the terms

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it's ordinary common understanding and definition?

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00:12:29.170 --> 00:12:30.150
<v ->I disagree.</v>

260
00:12:30.150 --> 00:12:31.900
I mean, this is a unique set of facts

261
00:12:31.900 --> 00:12:35.100
it's never come up, in any case

262
00:12:35.100 --> 00:12:38.660
where someone actively defrauded another person.

263
00:12:38.660 --> 00:12:40.580
<v ->I'm not disagreeing that that's your interpretation.</v>

264
00:12:40.580 --> 00:12:41.560
What I'm getting to is,

265
00:12:41.560 --> 00:12:44.300
doesn't that change the definition of secret

266
00:12:45.700 --> 00:12:47.563
as it's commonly understood?

267
00:12:49.340 --> 00:12:50.173
<v ->I don't think so.</v>

268
00:12:50.173 --> 00:12:53.420
I think it's secret if it's somebody else

269
00:12:53.420 --> 00:12:54.770
did he identify themselves?

270
00:12:54.770 --> 00:12:58.430
If he didn't and then that recording is secret

271
00:12:58.430 --> 00:13:02.980
by lying to get the conversation in the first place.

272
00:13:02.980 --> 00:13:04.820
And then to say I'm gonna record you.

273
00:13:04.820 --> 00:13:06.080
May I record you, he actually asked--

274
00:13:06.080 --> 00:13:09.300
<v ->Counsel, if we adopt your definition of secretly</v>

275
00:13:09.300 --> 00:13:11.588
that is a recording by somebody other than the person

276
00:13:11.588 --> 00:13:15.491
that you thought you were agreeing to.

277
00:13:15.491 --> 00:13:17.330
Yeah how does that square and this goes back

278
00:13:17.330 --> 00:13:18.820
to justice Cypher's question

279
00:13:18.820 --> 00:13:20.810
that kicked off your oral argument.

280
00:13:20.810 --> 00:13:22.540
How does that square with the first amendment

281
00:13:22.540 --> 00:13:24.440
and the recent first circuit decision?

282
00:13:25.990 --> 00:13:30.610
<v ->Because we're talking about here is not in the,</v>

283
00:13:30.610 --> 00:13:32.320
first it's not in the course of his public duty,

284
00:13:32.320 --> 00:13:34.930
second it's fraud.

285
00:13:34.930 --> 00:13:36.670
What we are suggesting

286
00:13:36.670 --> 00:13:38.640
what I'm suggesting in this case

287
00:13:38.640 --> 00:13:41.110
is that the fraud element takes it out of the norm.

288
00:13:41.110 --> 00:13:42.820
Takes it out of the other cases.

289
00:13:42.820 --> 00:13:44.460
The act of fraud,

290
00:13:44.460 --> 00:13:47.830
they pretending to be someone to induce the person to talk

291
00:13:48.840 --> 00:13:49.797
and then to be recorded.

292
00:13:49.797 --> 00:13:52.268
<v ->[Chief Justice Budd] Did you plead that claim?</v>

293
00:13:52.268 --> 00:13:54.150
Is there a fraud case here?

294
00:13:54.150 --> 00:13:56.100
Is there a misrepresentation case here

295
00:13:56.100 --> 00:13:57.350
that you could have made?

296
00:13:59.358 --> 00:14:00.408
<v ->Probably we should,</v>

297
00:14:01.327 --> 00:14:02.160
I see--
<v ->I'm only asking</v>

298
00:14:02.160 --> 00:14:03.320
because you've got you know,

299
00:14:03.320 --> 00:14:05.720
all your eggs on the statute.

300
00:14:05.720 --> 00:14:06.970
<v Attorney Kesten>Yep.</v>
<v ->Yep.</v>

301
00:14:06.970 --> 00:14:08.300
And so were there any other--

302
00:14:08.300 --> 00:14:10.130
<v ->Well, I'll tell you when I looked at it</v>

303
00:14:10.130 --> 00:14:13.320
I thought it was a clear-cut violation of the statute,

304
00:14:13.320 --> 00:14:15.683
when Minihane did this.

305
00:14:16.540 --> 00:14:17.630
<v ->I understand--</v>
<v ->can you--</v>

306
00:14:17.630 --> 00:14:19.160
<v ->I think I understand why your client</v>

307
00:14:19.160 --> 00:14:20.710
was not happy with it.

308
00:14:20.710 --> 00:14:22.830
I completely understand that.

309
00:14:22.830 --> 00:14:24.180
But I'm just trying to figure out

310
00:14:24.180 --> 00:14:26.010
how this is a secret recording.

311
00:14:26.010 --> 00:14:29.870
And I understand your argument about it

312
00:14:29.870 --> 00:14:31.107
but if he knew about the recording,

313
00:14:31.107 --> 00:14:32.900
and this is a wiretap statute

314
00:14:32.900 --> 00:14:35.130
which was created to keep people

315
00:14:35.130 --> 00:14:39.910
from surreptitiously recording another person.

316
00:14:39.910 --> 00:14:42.240
That's I mean, that just isn't what happened

317
00:14:42.240 --> 00:14:43.970
in this particular case.

318
00:14:43.970 --> 00:14:47.690
I understand that he was induced by fraud

319
00:14:47.690 --> 00:14:51.960
to give his consent, but I'm not sure that that fits

320
00:14:51.960 --> 00:14:54.460
within this particular statute.

321
00:14:54.460 --> 00:14:55.640
<v ->It's not, I hear you.</v>

322
00:14:55.640 --> 00:15:00.037
It's not just his consent, but even the conversation.

323
00:15:01.053 --> 00:15:02.683
Even to continue talking.

324
00:15:04.120 --> 00:15:06.320
None of this would have happened.

325
00:15:06.320 --> 00:15:09.830
And I say that's my, that's how I suggest to you.

326
00:15:09.830 --> 00:15:13.040
And I suggest to you there's no slippery slope here

327
00:15:13.040 --> 00:15:16.610
there is no broad public policy implications.

328
00:15:16.610 --> 00:15:17.610
This doesn't happen.

329
00:15:20.620 --> 00:15:23.420
It happened the one time we can't find any case like it.

330
00:15:24.970 --> 00:15:27.037
Where something like this happened.

331
00:15:27.037 --> 00:15:28.990
<v ->I sort of, I think it happens fairly frequently</v>

332
00:15:28.990 --> 00:15:33.430
with people who get people get tricked.

333
00:15:33.430 --> 00:15:34.880
They think they're talking to one person

334
00:15:34.880 --> 00:15:37.860
they're talking to another and then it gets put on.

335
00:15:37.860 --> 00:15:39.513
<v ->In one party consent States?</v>

336
00:15:40.580 --> 00:15:43.580
That's why in the Mulas they lured the young man to New York

337
00:15:44.810 --> 00:15:47.160
and in many States is one party consent.

338
00:15:47.160 --> 00:15:49.170
So they get people into one party consent state

339
00:15:49.170 --> 00:15:50.410
they can do all this.

340
00:15:50.410 --> 00:15:53.903
But Massachusetts is a two party consent state so you can't.

341
00:15:55.470 --> 00:15:56.783
It's illegal.
<v ->Okay.</v>

342
00:15:57.739 --> 00:15:59.771
Does anyone have any other questions?

343
00:15:59.771 --> 00:16:00.604
<v ->No thank you.</v>
<v ->No thank you.</v>

344
00:16:00.604 --> 00:16:01.775
<v ->Great, thank you so much Mr. Kesten.</v>

345
00:16:01.775 --> 00:16:03.060
<v Attorney Kesten>Thank you it was my pleasure.</v>

346
00:16:03.060 --> 00:16:04.053
<v ->Attorney Moss.</v>

347
00:16:05.190 --> 00:16:07.430
<v ->Good morning, Chief Justice Budd.</v>

348
00:16:07.430 --> 00:16:08.840
And may it please the court.

349
00:16:08.840 --> 00:16:12.110
My name is Aaron Moss and I'm appearing this morning

350
00:16:12.110 --> 00:16:15.310
on behalf of the defendants Barstool sports

351
00:16:15.310 --> 00:16:17.105
and Kirk Minihane.

352
00:16:17.105 --> 00:16:19.000
I'm very sorry that I was not able

353
00:16:19.000 --> 00:16:23.370
to appear in person today I very much wanted to.

354
00:16:23.370 --> 00:16:25.890
You're all doing better in Massachusetts

355
00:16:25.890 --> 00:16:27.990
on the COVID front than we are in California

356
00:16:27.990 --> 00:16:30.790
and I'm sure you wanna keep it that way.

357
00:16:30.790 --> 00:16:34.590
Accepting mayor Curtatone's argument would require

358
00:16:34.590 --> 00:16:38.670
that this court both ignore the plain language

359
00:16:38.670 --> 00:16:40.960
of the Massachusetts wiretap statute

360
00:16:40.960 --> 00:16:45.470
and also overrule more than 40 years of precedent

361
00:16:45.470 --> 00:16:48.240
going back to Commonwealth versus Jackson.

362
00:16:48.240 --> 00:16:51.120
There's no reason for this court to do that though

363
00:16:51.120 --> 00:16:53.570
because as Jackson held,

364
00:16:53.570 --> 00:16:57.000
the statute is clear and unambiguous hence--

365
00:16:57.000 --> 00:16:58.650
<v ->Okay counsel can you do,</v>

366
00:16:58.650 --> 00:17:02.060
can you address the project Veritas case?

367
00:17:02.060 --> 00:17:04.103
The Gross the it was the,

368
00:17:05.350 --> 00:17:07.680
first it gave us the on the federal district

369
00:17:07.680 --> 00:17:09.090
it was the Martin Gross case

370
00:17:09.090 --> 00:17:12.190
and then it becomes named the project Veritas case

371
00:17:12.190 --> 00:17:14.110
when it gets up to the federal circuit.

372
00:17:14.110 --> 00:17:15.580
<v ->Yes I'm--</v>
<v ->And your ruling on this</v>

373
00:17:15.580 --> 00:17:18.180
and how this might affect this case.

374
00:17:18.180 --> 00:17:21.090
<v ->Sure, in the project Veritas case</v>

375
00:17:21.090 --> 00:17:25.430
in the portion that was found to be unconstitutional,

376
00:17:25.430 --> 00:17:28.560
the first circuit in an opinion that was joined

377
00:17:28.560 --> 00:17:32.550
by former Justice of the Supreme Court, David Souter

378
00:17:32.550 --> 00:17:37.470
held that even the secret recording of police officers

379
00:17:37.470 --> 00:17:42.050
in public spaces would be unconstitutional

380
00:17:42.050 --> 00:17:45.490
to hold that that is a violation of section 99.

381
00:17:45.490 --> 00:17:48.140
And here you have a situation

382
00:17:48.140 --> 00:17:51.620
where the recording was not secret

383
00:17:51.620 --> 00:17:55.260
and so it actually goes much further.

384
00:17:55.260 --> 00:17:57.380
And I would say that I'll for sure I

385
00:17:57.380 --> 00:18:02.220
if the secret recording of a public official

386
00:18:02.220 --> 00:18:04.640
or at least a police officer in that case

387
00:18:05.720 --> 00:18:10.420
was a first amendment violation

388
00:18:10.420 --> 00:18:13.540
that we would certainly have first amendment implications

389
00:18:13.540 --> 00:18:16.090
if we were to interpret the statute the way

390
00:18:16.090 --> 00:18:18.960
that mayor Curtatone has argued

391
00:18:18.960 --> 00:18:20.430
that it should be interpreted.

392
00:18:20.430 --> 00:18:22.033
But of course as this--
<v ->Was the plaintiff</v>

393
00:18:22.033 --> 00:18:23.673
in a public space?

394
00:18:25.800 --> 00:18:27.100
<v ->I'm sorry,</v>

395
00:18:27.100 --> 00:18:28.420
can you repeat the question.
<v ->Was the plaintiff</v>

396
00:18:28.420 --> 00:18:30.840
in a public space?

397
00:18:30.840 --> 00:18:35.230
<v ->Your honor the plaintiff was not in a public space</v>

398
00:18:35.230 --> 00:18:38.150
and therefore we are not arguing

399
00:18:38.150 --> 00:18:43.150
that there was either consent or that this was public.

400
00:18:43.610 --> 00:18:45.810
We are not, we are going to assume

401
00:18:45.810 --> 00:18:47.780
for purposes of the argument

402
00:18:47.780 --> 00:18:49.810
that this was a private conversation

403
00:18:49.810 --> 00:18:51.830
even though mayor Curtatone believed

404
00:18:51.830 --> 00:18:54.520
it was gonna be published in the Boston Globe.

405
00:18:54.520 --> 00:18:57.840
The key though is that he had actual knowledge

406
00:18:57.840 --> 00:18:59.880
that he was being recorded.

407
00:18:59.880 --> 00:19:02.980
And as the court held in Pulaski,

408
00:19:02.980 --> 00:19:04.740
these are two independent prongs.

409
00:19:04.740 --> 00:19:06.460
You have the secrecy prong

410
00:19:06.460 --> 00:19:09.000
and you have the prior authority prong.

411
00:19:09.000 --> 00:19:12.120
And if either one of them is not present

412
00:19:12.120 --> 00:19:14.800
there is no violation.

413
00:19:14.800 --> 00:19:18.338
And very importantly your honors,

414
00:19:18.338 --> 00:19:23.338
the secrecy prong does not go to the identity

415
00:19:23.550 --> 00:19:26.200
of the person doing the recording

416
00:19:26.200 --> 00:19:29.010
it goes to the fact of the recording.

417
00:19:29.010 --> 00:19:32.400
And we know that from a number of cases

418
00:19:32.400 --> 00:19:35.700
for example, in Jackson the first case

419
00:19:35.700 --> 00:19:40.170
that the, this court construed the statute

420
00:19:40.170 --> 00:19:45.170
in that case the caller, the kidnapper

421
00:19:46.600 --> 00:19:50.830
he believed that he was being recorded by the police.

422
00:19:50.830 --> 00:19:53.410
Well, in fact he was actually being recorded

423
00:19:53.410 --> 00:19:56.570
by the kidnapping victims brother.

424
00:19:56.570 --> 00:20:00.057
He knew though and he demonstrated knowledge by saying,

425
00:20:00.057 --> 00:20:03.370
"I know the phone is being tapped but hey that's cool".

426
00:20:03.370 --> 00:20:07.080
And he continued talking with indifference to the fact

427
00:20:07.080 --> 00:20:09.320
that he knew he was being recorded.

428
00:20:09.320 --> 00:20:13.650
And so in that situation the Supreme judicial court held

429
00:20:13.650 --> 00:20:17.650
that because he had actual knowledge of the recording

430
00:20:17.650 --> 00:20:20.600
it was not secret and therefore not a violation

431
00:20:20.600 --> 00:20:24.300
of the statute even though he had not consented.

432
00:20:24.300 --> 00:20:28.710
<v ->Can I ask, I don't understand how consent works.</v>

433
00:20:28.710 --> 00:20:32.387
If there's a secrecy requirement how do you consent this?

434
00:20:32.387 --> 00:20:34.600
Why do we even worry about consent?

435
00:20:34.600 --> 00:20:37.957
I'm just not sure I understand what its role is.

436
00:20:37.957 --> 00:20:42.957
If something is secret and it's dispositive,

437
00:20:43.990 --> 00:20:45.950
if it's not secret it's dispositive

438
00:20:45.950 --> 00:20:47.580
what role does consent play?

439
00:20:47.580 --> 00:20:49.600
What, I just don't understand it.

440
00:20:49.600 --> 00:20:52.430
<v ->Sure no, and it's a great question.</v>

441
00:20:52.430 --> 00:20:55.430
I can certainly think of certain examples

442
00:20:55.430 --> 00:20:58.430
where you would have a secret recording

443
00:20:58.430 --> 00:21:01.330
and the question of consent would be predominant.

444
00:21:01.330 --> 00:21:05.970
For example, if the mayor were to call a press conference

445
00:21:05.970 --> 00:21:08.700
and a number of reporters showed up

446
00:21:08.700 --> 00:21:13.500
and they had iPhones hidden in their pockets

447
00:21:13.500 --> 00:21:15.190
and they were recording that

448
00:21:15.190 --> 00:21:18.760
then the question would be well, did he by virtue

449
00:21:18.760 --> 00:21:21.690
of inviting those reporters to the press conference

450
00:21:21.690 --> 00:21:25.700
can he be deemed to have consented to that recording

451
00:21:25.700 --> 00:21:29.050
even though he may not have had actual knowledge

452
00:21:29.050 --> 00:21:33.060
of who exactly or who, if anybody was actually recording?

453
00:21:33.060 --> 00:21:37.280
But I grant the fact that in most cases

454
00:21:37.280 --> 00:21:42.280
if there is a actual knowledge of the recording

455
00:21:42.350 --> 00:21:45.223
that that's gonna be dispositive.

456
00:21:47.601 --> 00:21:52.440
The other thing that I think is very important to remember

457
00:21:52.440 --> 00:21:56.330
is that this is a wiretapping statute

458
00:21:56.330 --> 00:22:00.750
and so it was designed to achieve a narrow purpose

459
00:22:00.750 --> 00:22:03.920
to the extent that another case could arise

460
00:22:03.920 --> 00:22:07.150
in which somebody is defrauded

461
00:22:07.150 --> 00:22:09.280
or is the victim of trespass

462
00:22:09.280 --> 00:22:14.280
or is, has had his or her privacy invaded.

463
00:22:14.590 --> 00:22:18.870
There are torts that this Commonwealth recognizes

464
00:22:18.870 --> 00:22:22.540
that in an appropriate case could be brought

465
00:22:22.540 --> 00:22:25.660
in order to give the plaintiff redress.

466
00:22:25.660 --> 00:22:30.160
However, there is not a cause of action here

467
00:22:30.160 --> 00:22:33.400
because in this case mayor Curtatone

468
00:22:33.400 --> 00:22:37.830
believed he was speaking to the Boston Globe,

469
00:22:37.830 --> 00:22:40.640
the largest newspaper in the city

470
00:22:40.640 --> 00:22:44.470
and believe that he was going to have his words printed

471
00:22:44.470 --> 00:22:45.440
in that paper.

472
00:22:45.440 --> 00:22:50.440
So there is no claim here for invasion of privacy.

473
00:22:51.000 --> 00:22:53.460
I don't believe there would be any fraud damages

474
00:22:53.460 --> 00:22:56.600
and of course the mayor did not plead any other causes

475
00:22:56.600 --> 00:22:57.433
of action,

476
00:22:57.433 --> 00:22:58.910
but certainly in another--
<v ->[Hon. Scott. Kafker] Can I--</v>

477
00:22:58.910 --> 00:22:59.743
<v ->Sure.</v>

478
00:22:59.743 --> 00:23:00.980
<v ->Mr. Moss can I ask you,</v>

479
00:23:00.980 --> 00:23:03.490
I understand you say that the secretly hearing

480
00:23:03.490 --> 00:23:06.680
was not properly presented below

481
00:23:06.680 --> 00:23:10.220
but I'm just trying to understand what is the difference

482
00:23:10.220 --> 00:23:14.070
between secretly hearing and secretly recording there?

483
00:23:14.070 --> 00:23:18.330
Are they, so you could explain to me

484
00:23:18.330 --> 00:23:20.590
what you think that means in the statute.

485
00:23:20.590 --> 00:23:21.423
<v ->Sure.</v>

486
00:23:21.423 --> 00:23:24.780
And your honor I would actually wave the argument

487
00:23:24.780 --> 00:23:28.910
about the argument not being presented below

488
00:23:28.910 --> 00:23:33.460
but regardless the fact of secretly recording

489
00:23:33.460 --> 00:23:35.510
is when you have a third party

490
00:23:35.510 --> 00:23:39.260
to the conversation listening in on the conversation

491
00:23:39.260 --> 00:23:42.230
it necessarily would require somebody

492
00:23:42.230 --> 00:23:44.550
who is not a party to the conversation

493
00:23:44.550 --> 00:23:47.550
and in order to construct his hypothetical--

494
00:23:47.550 --> 00:23:49.120
<v ->But you don't need to be,</v>

495
00:23:49.120 --> 00:23:52.370
it's not an, isn't it an either or?

496
00:23:52.370 --> 00:23:54.540
You can either be secretly hearing

497
00:23:54.540 --> 00:23:56.653
or secretly recording, right?

498
00:23:58.130 --> 00:23:58.997
<v ->Sorry my lights turned out.</v>

499
00:23:58.997 --> 00:24:00.500
<v ->[Hon. Scott. Kafker] Yeah.</v>
<v ->Absolutely.</v>

500
00:24:00.500 --> 00:24:02.590
You can be, you could be either,

501
00:24:02.590 --> 00:24:07.430
however in order to find a secret hearing,

502
00:24:07.430 --> 00:24:12.210
Mr. Curtatone has had to envision a situation

503
00:24:12.210 --> 00:24:15.150
in which he was speaking to Kevin Cullen

504
00:24:15.150 --> 00:24:18.852
and Kurt Minihane was eavesdropping on that conversation.

505
00:24:18.852 --> 00:24:19.861
However--
<v ->[Hon. Scott. Kafker] So,</v>

506
00:24:19.861 --> 00:24:21.760
I'm not sure I follow that cause I mean,

507
00:24:21.760 --> 00:24:24.510
Mr. Kesten hasn't presented this quite like that

508
00:24:24.510 --> 00:24:26.940
but is I mean,

509
00:24:26.940 --> 00:24:31.430
Mr. Mr. it's clear he's not being secretly recorded.

510
00:24:31.430 --> 00:24:32.890
At least it's clear to me

511
00:24:32.890 --> 00:24:37.780
but Mr. Minihane is sort of secretly hearing this in a sense

512
00:24:37.780 --> 00:24:41.550
because he's, he think I could see there's a difference

513
00:24:41.550 --> 00:24:44.970
between secretly hearing and secretly recording here

514
00:24:44.970 --> 00:24:47.770
because he surreptitiously hearing it, right.

515
00:24:47.770 --> 00:24:48.603
I mean I guess.

516
00:24:48.603 --> 00:24:50.560
<v ->But he's a party to the conversation.</v>

517
00:24:50.560 --> 00:24:54.230
So he can't be surreptitiously hearing his own conversation

518
00:24:54.230 --> 00:24:57.360
that to me does not make any sense

519
00:24:57.360 --> 00:25:01.010
that the statute clearly envisions a situation

520
00:25:01.010 --> 00:25:05.190
in which the police are listening in on a conversation

521
00:25:05.190 --> 00:25:06.550
to which they are not a party.

522
00:25:06.550 --> 00:25:09.260
Remember that the statute is a one party--

523
00:25:09.260 --> 00:25:10.500
<v ->So if, can I ask one second.</v>

524
00:25:10.500 --> 00:25:15.500
So if Mr. Cullen called up Mr. Curtatone and said,

525
00:25:16.707 --> 00:25:18.947
"I'm recording this I'm all alone".

526
00:25:20.880 --> 00:25:23.110
And Mr. Minihane was listening in

527
00:25:23.110 --> 00:25:25.880
would he be secretly hearing this?

528
00:25:25.880 --> 00:25:27.220
<v ->You mean you're assuming</v>

529
00:25:27.220 --> 00:25:30.630
that there was an actual Kevin Cullen present?

530
00:25:30.630 --> 00:25:31.463
<v ->Yeah.</v>

531
00:25:31.463 --> 00:25:33.294
I'm just trying to understand
<v Aaron Moss>sure.</v>

532
00:25:33.294 --> 00:25:34.220
<v ->what secretly hearing means</v>
<v Aaron Moss>Yeah.</v>

533
00:25:34.220 --> 00:25:36.780
If it's different from secretly recording.

534
00:25:36.780 --> 00:25:38.200
<v ->Yeah, absolutely.</v>

535
00:25:38.200 --> 00:25:40.480
If there was, if Kevin Cullen

536
00:25:40.480 --> 00:25:45.360
was interviewing mayor Curtatone

537
00:25:45.360 --> 00:25:50.020
and Mr. Minihane or anybody else was listening in

538
00:25:50.020 --> 00:25:52.830
then that would be secretly hearing

539
00:25:52.830 --> 00:25:56.950
because there is no--
<v ->Isn't that what Mr. Kesten</v>

540
00:25:56.950 --> 00:26:00.808
sort of indirectly making that argument

541
00:26:00.808 --> 00:26:04.290
by saying he's pretending to be Cullen

542
00:26:04.290 --> 00:26:06.510
he's secretly hearing this.

543
00:26:06.510 --> 00:26:09.610
I mean like, he's not quite doing that

544
00:26:09.610 --> 00:26:13.400
but it seems like that's his better argument that--

545
00:26:13.400 --> 00:26:15.360
<v ->But it requires you to assume</v>

546
00:26:15.360 --> 00:26:18.340
and to assume an imaginary conversation

547
00:26:18.340 --> 00:26:23.340
between Mr. Cullen and Mr. Curtatone

548
00:26:25.110 --> 00:26:27.140
to which Mr. Minihane is listening in

549
00:26:27.140 --> 00:26:29.020
but in fact--
<v Hon. Scott>But doesn't--</v>

550
00:26:29.020 --> 00:26:30.760
<v ->there were only two parties to the conversation.</v>

551
00:26:30.760 --> 00:26:33.380
<v ->But doesn't Mr. Minihane create</v>

552
00:26:33.380 --> 00:26:36.940
that imaginary conversation by pretending to be

553
00:26:36.940 --> 00:26:40.490
I mean, he's pretending to be Mr. Cullen.

554
00:26:40.490 --> 00:26:43.468
So there is an imaginary element to this.

555
00:26:43.468 --> 00:26:45.258
Isn't there?

556
00:26:45.258 --> 00:26:46.091
I mean it's--

557
00:26:46.091 --> 00:26:48.410
<v ->Yeah but, there's certainly an imaginary element</v>

558
00:26:48.410 --> 00:26:53.410
but as I said, Mr. Minihane was a party

559
00:26:54.540 --> 00:26:57.580
in actuality was a party to that conversation.

560
00:26:57.580 --> 00:27:00.170
There was no conversation with Mr. Cullen

561
00:27:00.170 --> 00:27:05.170
and so therefore it would, it's just fictional to say

562
00:27:05.920 --> 00:27:07.420
that there were three parties

563
00:27:07.420 --> 00:27:09.740
and Mr. Minihane was listening in.

564
00:27:09.740 --> 00:27:11.180
<v ->I'm just trying to get a sense</v>

565
00:27:11.180 --> 00:27:14.270
of what secretly hearing means if it's different--

566
00:27:14.270 --> 00:27:15.103
<v ->Yeah and I</v>

567
00:27:15.103 --> 00:27:16.220
<v ->and why this isn't that</v>

568
00:27:16.220 --> 00:27:18.670
but I understand your argument

569
00:27:18.670 --> 00:27:21.420
because he is the person on the phone

570
00:27:21.420 --> 00:27:25.600
he can't be you know, a separate secret hearer or something.

571
00:27:25.600 --> 00:27:26.433
<v ->Right.</v>

572
00:27:26.433 --> 00:27:28.520
And just, if we remember what the statute is about

573
00:27:28.520 --> 00:27:33.210
it was designed to provide safeguards

574
00:27:33.210 --> 00:27:35.070
with respect to wiretapping

575
00:27:35.070 --> 00:27:38.040
which the legislature determined was important

576
00:27:38.040 --> 00:27:41.830
to allow the police to do in order to stop organized crime.

577
00:27:41.830 --> 00:27:45.270
And so you have a one-party consent

578
00:27:45.270 --> 00:27:47.500
with regard to any conversations

579
00:27:47.500 --> 00:27:49.930
in which the police are participating.

580
00:27:49.930 --> 00:27:52.860
But with respect to the police listening in

581
00:27:52.860 --> 00:27:56.750
on another conversation between two different parties

582
00:27:56.750 --> 00:28:01.630
there are different set of rules that apply,

583
00:28:01.630 --> 00:28:05.350
and in that situation if the police are listening in

584
00:28:05.350 --> 00:28:08.397
they would be secretly hearing that conversation

585
00:28:08.397 --> 00:28:11.270
unless they go through the appropriate protocols

586
00:28:11.270 --> 00:28:13.700
that are laid out in the statute.

587
00:28:13.700 --> 00:28:18.660
I think that it's important to remember

588
00:28:18.660 --> 00:28:22.810
that if we were to interpret the statute in the way

589
00:28:22.810 --> 00:28:27.200
that mayor Curtatone is asking your honors to

590
00:28:27.200 --> 00:28:31.520
that it would raise a whole host of issues

591
00:28:31.520 --> 00:28:34.570
that are constitutional in nature

592
00:28:34.570 --> 00:28:37.170
that the court does not need to

593
00:28:37.170 --> 00:28:40.130
and should not be waiting into.

594
00:28:40.130 --> 00:28:43.770
And there are issues regarding,

595
00:28:43.770 --> 00:28:46.700
given that this is a content neutral statute

596
00:28:47.700 --> 00:28:51.070
we would be raising issues regarding

597
00:28:51.070 --> 00:28:54.740
the type of speech that actually gave rise

598
00:28:54.740 --> 00:28:56.760
to a violation of the statute.

599
00:28:56.760 --> 00:29:00.010
Here you have a situation where it's the identity

600
00:29:00.010 --> 00:29:03.890
of the person doing the recording.

601
00:29:03.890 --> 00:29:07.150
In another case it could be that the,

602
00:29:07.150 --> 00:29:09.830
in this case Mr. Minihane promised

603
00:29:09.830 --> 00:29:12.700
that he would write a certain type of story

604
00:29:12.700 --> 00:29:15.600
about Mr. Curtatone and perhaps the story turns out

605
00:29:15.600 --> 00:29:18.070
to be different than it was promised.

606
00:29:18.070 --> 00:29:21.870
There may be any other number of issues

607
00:29:21.870 --> 00:29:23.060
that would all--
<v ->One of the, Mr. Moss</v>

608
00:29:23.060 --> 00:29:24.930
Mr. Moss, if I can interrupt you.

609
00:29:24.930 --> 00:29:28.530
I think one of the issues you may have raised in the brief

610
00:29:28.530 --> 00:29:33.270
was if you actually blend the secretly recording

611
00:29:33.270 --> 00:29:37.020
with the consent that there might be implications

612
00:29:37.020 --> 00:29:39.263
for investigatory reporting?

613
00:29:41.220 --> 00:29:42.278
<v ->Sure, yeah.</v>

614
00:29:42.278 --> 00:29:43.390
Absolutely.

615
00:29:43.390 --> 00:29:47.430
Because if you take this to mean

616
00:29:47.430 --> 00:29:51.280
that the person who is being recorded needs

617
00:29:51.280 --> 00:29:55.710
to fully understand all the aspects

618
00:29:55.710 --> 00:29:59.650
or the identity certainly of the person doing the recording

619
00:29:59.650 --> 00:30:04.650
then even if that person does not affirmatively say

620
00:30:05.000 --> 00:30:06.710
that he is somebody else,

621
00:30:06.710 --> 00:30:10.810
if he is blending into a crowd if he's

622
00:30:10.810 --> 00:30:15.040
for example, shows up at the Capitol wearing a Maga hat,

623
00:30:15.040 --> 00:30:17.210
in order to interview the people

624
00:30:17.210 --> 00:30:18.800
who are storming the Capitol

625
00:30:18.800 --> 00:30:21.617
the person being recorded could then later say,

626
00:30:21.617 --> 00:30:25.550
"well I assumed that this was one of us

627
00:30:25.550 --> 00:30:28.880
and so therefore I spoke to him",

628
00:30:28.880 --> 00:30:32.410
but it would raise any number of issues

629
00:30:32.410 --> 00:30:35.160
that would prevent the legitimate news gathering.

630
00:30:35.160 --> 00:30:36.820
And I think this is what's very important

631
00:30:36.820 --> 00:30:38.720
about the project Veritas case,

632
00:30:38.720 --> 00:30:41.760
is that the news gathering function

633
00:30:41.760 --> 00:30:44.420
is just as important for the first amendment

634
00:30:44.420 --> 00:30:48.690
as the publication and dissemination aspect

635
00:30:48.690 --> 00:30:50.580
of the first amendment.

636
00:30:50.580 --> 00:30:55.400
And of course in Jackson this court specifically said

637
00:30:55.400 --> 00:30:57.800
that the actual knowledge of the recording

638
00:30:57.800 --> 00:30:59.730
is the proper standard so we don't need

639
00:30:59.730 --> 00:31:02.230
to get into all these subjective issues

640
00:31:02.230 --> 00:31:05.340
about what was in the head of the person recording

641
00:31:05.340 --> 00:31:09.180
and sticking to the statutory interpretation

642
00:31:09.180 --> 00:31:12.510
that this court has adopted for the past 40 years

643
00:31:12.510 --> 00:31:14.940
would allow us to continue

644
00:31:14.940 --> 00:31:18.490
to avoid these important constitutional issues

645
00:31:18.490 --> 00:31:20.060
that would otherwise be raised.

646
00:31:20.060 --> 00:31:22.040
Unless there are any other questions.

647
00:31:22.040 --> 00:31:25.170
I would just suggest that,

648
00:31:25.170 --> 00:31:30.130
of course the superior court needs to be affirmed.

649
00:31:30.130 --> 00:31:30.963
<v ->Okay.</v>

650
00:31:30.963 --> 00:31:32.220
<v ->Thank you very much counsel.</v>

651
00:31:32.220 --> 00:31:33.290
<v ->Thank you counsel.</v>