-: SJC-13027,
Joseph A. Curtatone v. Barstool Sports and Kirk Minihane.
-: Attorney Kesten.
Attorney Kesten: Wait, I'm I just sitting down
or standing up?
-: You can stand up at the podium.
At that right there, yeap.
-: May it please the court, good morning.
I am doubly thrilled,
this is my first time in court in 11 months.
In all places to be here.
Thank you for having us.
In Massachusetts the legislature decided
that each party would have the right
to control the recording of their voice.
Either the...
in this case the facts are simple and uncontroversial.
What happened was as you know,
there was a public dispute between mayor Joseph Curtatone
and Barstool Sports, especially Mr. Portnoy.
Mr. Minihane went to work for Barstool Sports.
So Minihane says he tried to get an interview
with the mayor Curtatone the mayor is not aware of this.
And then Mr. Minihane decided to defraud Mr. Curtatone.
-: Hey counsel,
I am behind you here, Justice Cypher.
You can keep looking at the camera though
but I'm the one asking you the question right now.
And my question is we understand the facts of the case.
Can you address the issue with regard to consent
and well, not consent but secret secretly the term secretly
in the statute and how that works with actual consent
or fraudulent fraudulently obtained consent.
And then my other question is going to be
about the case from the federal circuit
on the Veritas, Project Veritas and the recent finding
that our statute is partially unconstitutional at least.
Can you address those issues for me?
-: Well, I don't believe the statute is unconstitutional.
-: Well, the federal court said in some cases it is.
So and this is involving the police officers
and involving recording, secretly recording public officials
in public spaces it's unconstitutional
-: That fits our case actually perfectly
in the negative that is.
If mayor, if the mayor Curtatone
as a public official was making a speech
was speaking in a public place about his duties,
I agree with you that they would have no right to
he could be recorded.
What happened here was not that.
This was a private phone conversation
between mayor Curtatone and somebody he knew.
There's all these nuances to these cases and in that,
if somebody calls you doesn't tell you who they are
and tells you they're going to record you,
they don't need you to agree
but if you keep talking, you have agreed, correct?
That is how we interpret this.
If you keep talking you agree.
Even though you don't know who it is
you've decided to let anybody record.
In this circumstance that's not what happened.
Mr. Minihane, didn't say he was,
he identified himself falsely--
-: Before you read that Mr. Kesten
but if this is,
I mean it's a matter of public importance, right?
Important enough for your client to want to you know,
address the issue publicly.
He's not speaking to his neighbor
he's speaking to a reporter for the Boston Globe.
So it's not really a private conversation
it's a conversation on a public issue with a reporter.
Doesn't that raise first amendment issues
as the first circuit talks about in Veritas?
-: I disagree it would raise,
it's odd answering your question without looking at you.
-: Yeah no, you can look wherever you like
we're all in this sort of 360 process here
so look anywhere.
-: No, he was he agreed to speak to a reporter that he knew,
a friend.
If you listen to the,
if you listen to the conversation which we've attached,
Mr. Minihane would go so far
as to reference a mutual friend.
So the conversation never would have happened.
The secret is that he agreed
to a conversation with Kevin Cullen,
and then he had to,
and he was deceived deliberately to say by Mr. Minihane.
There's no first amendment issue here.
-: Council,
how is your proposed interpretation of the statute
any different than
if the statute did not use the word secretly
-: If the statute did not use the word secretly
that is-- -: Yeah,
that is the statute says,
"secretly recording an oral communication
by a person other than the person given authority".
It seems to me that your interpreting
secretly out of the statute
and I'm trying to wonder, I'm wondering how
that squares with the words of the statute.
Because you're saying that the recording
has to be by the person who was given authority
in this case the Boston Globe reporter.
Right?
-: Yes.
-: Why, it says,
so that would be taken care of by this phrase
"by a person other than a person given authority"?
But the statute doesn't limit it is not limited that way.
It requires that the recording be secret also.
-: In this situation he sought authority
and the secrecy is the person who's recording it.
-: So you're saying that secretly means the person
who's given authority.
That is someone other than the person given authority.
-: Yes if someone other if someone,
because here he sought authority.
If he didn't seek authority
if he just held up the phone, the Glik case.
He held up the phone and the person recorded was aware
that somebody it, the police officers
the Common did not know it was Mr. Glik
somebody was recording them
they had a right to stop talking.
They were given that right if they wanted to.
If they wanted to keep talking they'd be recorded.
That's the choice you make when somebody tells you.
But when somebody lies to you about who they are,
I mean if one of you, if a justice called another justice
and said I'd like to record it just so I remember it
likely you would say okay,
if it turns out that that person
was not who they said they were
then it was a secret recording by me say.
if I did it and pretended to be one of you.
-: It just seems to me that you're reading
that secretly word out of the statute
because you're saying secret needs to be
by the person given authority.
-: You can't lie.
You can't lie about who you are
to get the conversation and the recording.
That is-- -: Where's that
understandable morality infused into section 99?
With section 99 it is intending
he didn't know when secretly recorded.
-: Yes. -: The mayor
was not secretly recorded.
He understood he was being recorded.
Your interpretation might be better I don't know.
Although it has, here it's public policy
and first amendment implications
but the statute talks about secretly.
If you know you're being recorded
you're not secretly being recorded.
-: But if you know you're being recorded by a person you know
then you are being secretly recorded by someone else.
And I suggest to you--
-: But doesn't that go too far right.
Because if you're in public
if the mayor is in public
anyone can stick their phone up in the air
and ask him a question, right.
He knows he's being recorded
but he doesn't know who it is.
And he also doesn't know who they're gonna share it with.
He just knows he's being recorded, right?
Attorney Kesten: You're right.
-: So it's, there isn't a knowledge
of knowing who's recording you there's just a knowledge
of knowing you're being recorded, right?
-: Correct.
Here's the issue though,
if you know someone's recording you you don't know who it is
your choice is to whether to keep talking.
When you're induced to have a conversation
by someone lying and saying
they're somebody you know and trust
that you have agreed to that, you have not.
And you know that they are recording you
and you know it,
sensibly you kind of know what they might do with it
but if somebody is tricking you--
-: But isn't -: that's not okay.
-: there always a risk,
isn't there always a risk when you're being recorded
that it's gonna be shared with somebody you don't trust.
That's why recording is different
from a normal conversation, right?
-: I mean, if you can have a perfectly legal conversation.
I meet with you I sit down with you I say, may I record you?
And I may betray your trust or--
-: But Mr. Cullen could have given the tape to Barstool
or as reporters if he's gonna write about the story,
he may comment he may ask Barstool for comments.
That sort of even your client would expect
if he thinks this is gonna result in a story, right.
That it would result in a back and forth
between Mr. Cullen and Barstool, right.
I just, he knows he's being recorded
and he knows that there isn't any control
it's up to Mr. Cullen what he's gonna do with this, right?
-: But your honor that's always true.
-: Mr. Kesten how do you get around the precedent we have
where we have a requirement,
number one that it be secretly recorded
then number two the consent issue.
And keep in mind this is the wiretapping statute
as you well know.
And going back when it was enacted
it was to authorize and not authorize police
to tap into people's phones
it's a surreptitious component of the statute.
And just as Wendlandt pointed out
I don't think what you're address,
you're not addressing the secret part of it.
You're kind of just conflating everything
into what you want it to read.
-: I don't think so.
I mean, I know we're accused of that in the brief.
What I'm saying is it because of the fraud
in identity and pretending to be someone
that mayor Curtatone knew.
That made the recording by him secret.
Now you don't have to know who's recording
absolutely too it's your choice.
I got a call Friday, actually from a reporter
who I didn't know who said, "may I record you?"
I actually asked him, "how do I know it's you?"
But I knew it was someone, I didn't know him
and I agreed to go ahead, let him record me.
But if that person had said they were someone
that I know and trust, which happens all the time.
And that person asked me to record and then I found out
that this other person actually recorded it
that's a secret recording.
-: Counsel.
Don't we normally talk about
when it comes to the construction of statutes
then we give the words
their everyday common understanding and definition.
And this it just goes back to justice Lowy's point.
Secret means secret means secret.
And if we're now infusing it
with this definition you're giving
where there has to be some objectivity to it
where you think it's actually the person who said,
"I'm recording you"
and if it's not, then therefore it's secret.
Doesn't that create all of the mischief we talk about
when we don't afford the terms
it's ordinary common understanding and definition?
-: I disagree.
I mean, this is a unique set of facts
it's never come up, in any case
where someone actively defrauded another person.
-: I'm not disagreeing that that's your interpretation.
What I'm getting to is,
doesn't that change the definition of secret
as it's commonly understood?
-: I don't think so.
I think it's secret if it's somebody else
did he identify themselves?
If he didn't and then that recording is secret
by lying to get the conversation in the first place.
And then to say I'm gonna record you.
May I record you, he actually asked--
-: Counsel, if we adopt your definition of secretly
that is a recording by somebody other than the person
that you thought you were agreeing to.
Yeah how does that square and this goes back
to justice Cypher's question
that kicked off your oral argument.
How does that square with the first amendment
and the recent first circuit decision?
-: Because we're talking about here is not in the,
first it's not in the course of his public duty,
second it's fraud.
What we are suggesting
what I'm suggesting in this case
is that the fraud element takes it out of the norm.
Takes it out of the other cases.
The act of fraud,
they pretending to be someone to induce the person to talk
and then to be recorded.
-: [Chief Justice Budd] Did you plead that claim?
Is there a fraud case here?
Is there a misrepresentation case here
that you could have made?
-: Probably we should,
I see-- -: I'm only asking
because you've got you know,
all your eggs on the statute.
Attorney Kesten: Yep. -: Yep.
And so were there any other--
-: Well, I'll tell you when I looked at it
I thought it was a clear-cut violation of the statute,
when Minihane did this.
-: I understand-- -: can you--
-: I think I understand why your client
was not happy with it.
I completely understand that.
But I'm just trying to figure out
how this is a secret recording.
And I understand your argument about it
but if he knew about the recording,
and this is a wiretap statute
which was created to keep people
from surreptitiously recording another person.
That's I mean, that just isn't what happened
in this particular case.
I understand that he was induced by fraud
to give his consent, but I'm not sure that that fits
within this particular statute.
-: It's not, I hear you.
It's not just his consent, but even the conversation.
Even to continue talking.
None of this would have happened.
And I say that's my, that's how I suggest to you.
And I suggest to you there's no slippery slope here
there is no broad public policy implications.
This doesn't happen.
It happened the one time we can't find any case like it.
Where something like this happened.
-: I sort of, I think it happens fairly frequently
with people who get people get tricked.
They think they're talking to one person
they're talking to another and then it gets put on.
-: In one party consent States?
That's why in the Mulas they lured the young man to New York
and in many States is one party consent.
So they get people into one party consent state
they can do all this.
But Massachusetts is a two party consent state so you can't.
It's illegal. -: Okay.
Does anyone have any other questions?
-: No thank you. -: No thank you.
-: Great, thank you so much Mr. Kesten.
Attorney Kesten: Thank you it was my pleasure.
-: Attorney Moss.
-: Good morning, Chief Justice Budd.
And may it please the court.
My name is Aaron Moss and I'm appearing this morning
on behalf of the defendants Barstool sports
and Kirk Minihane.
I'm very sorry that I was not able
to appear in person today I very much wanted to.
You're all doing better in Massachusetts
on the COVID front than we are in California
and I'm sure you wanna keep it that way.
Accepting mayor Curtatone's argument would require
that this court both ignore the plain language
of the Massachusetts wiretap statute
and also overrule more than 40 years of precedent
going back to Commonwealth versus Jackson.
There's no reason for this court to do that though
because as Jackson held,
the statute is clear and unambiguous hence--
-: Okay counsel can you do,
can you address the project Veritas case?
The Gross the it was the,
first it gave us the on the federal district
it was the Martin Gross case
and then it becomes named the project Veritas case
when it gets up to the federal circuit.
-: Yes I'm-- -: And your ruling on this
and how this might affect this case.
-: Sure, in the project Veritas case
in the portion that was found to be unconstitutional,
the first circuit in an opinion that was joined
by former Justice of the Supreme Court, David Souter
held that even the secret recording of police officers
in public spaces would be unconstitutional
to hold that that is a violation of section 99.
And here you have a situation
where the recording was not secret
and so it actually goes much further.
And I would say that I'll for sure I
if the secret recording of a public official
or at least a police officer in that case
was a first amendment violation
that we would certainly have first amendment implications
if we were to interpret the statute the way
that mayor Curtatone has argued
that it should be interpreted.
But of course as this-- -: Was the plaintiff
in a public space?
-: I'm sorry,
can you repeat the question. -: Was the plaintiff
in a public space?
-: Your honor the plaintiff was not in a public space
and therefore we are not arguing
that there was either consent or that this was public.
We are not, we are going to assume
for purposes of the argument
that this was a private conversation
even though mayor Curtatone believed
it was gonna be published in the Boston Globe.
The key though is that he had actual knowledge
that he was being recorded.
And as the court held in Pulaski,
these are two independent prongs.
You have the secrecy prong
and you have the prior authority prong.
And if either one of them is not present
there is no violation.
And very importantly your honors,
the secrecy prong does not go to the identity
of the person doing the recording
it goes to the fact of the recording.
And we know that from a number of cases
for example, in Jackson the first case
that the, this court construed the statute
in that case the caller, the kidnapper
he believed that he was being recorded by the police.
Well, in fact he was actually being recorded
by the kidnapping victims brother.
He knew though and he demonstrated knowledge by saying,
"I know the phone is being tapped but hey that's cool".
And he continued talking with indifference to the fact
that he knew he was being recorded.
And so in that situation the Supreme judicial court held
that because he had actual knowledge of the recording
it was not secret and therefore not a violation
of the statute even though he had not consented.
-: Can I ask, I don't understand how consent works.
If there's a secrecy requirement how do you consent this?
Why do we even worry about consent?
I'm just not sure I understand what its role is.
If something is secret and it's dispositive,
if it's not secret it's dispositive
what role does consent play?
What, I just don't understand it.
-: Sure no, and it's a great question.
I can certainly think of certain examples
where you would have a secret recording
and the question of consent would be predominant.
For example, if the mayor were to call a press conference
and a number of reporters showed up
and they had iPhones hidden in their pockets
and they were recording that
then the question would be well, did he by virtue
of inviting those reporters to the press conference
can he be deemed to have consented to that recording
even though he may not have had actual knowledge
of who exactly or who, if anybody was actually recording?
But I grant the fact that in most cases
if there is a actual knowledge of the recording
that that's gonna be dispositive.
The other thing that I think is very important to remember
is that this is a wiretapping statute
and so it was designed to achieve a narrow purpose
to the extent that another case could arise
in which somebody is defrauded
or is the victim of trespass
or is, has had his or her privacy invaded.
There are torts that this Commonwealth recognizes
that in an appropriate case could be brought
in order to give the plaintiff redress.
However, there is not a cause of action here
because in this case mayor Curtatone
believed he was speaking to the Boston Globe,
the largest newspaper in the city
and believe that he was going to have his words printed
in that paper.
So there is no claim here for invasion of privacy.
I don't believe there would be any fraud damages
and of course the mayor did not plead any other causes
of action,
but certainly in another-- -: [Hon. Scott. Kafker] Can I--
-: Sure.
-: Mr. Moss can I ask you,
I understand you say that the secretly hearing
was not properly presented below
but I'm just trying to understand what is the difference
between secretly hearing and secretly recording there?
Are they, so you could explain to me
what you think that means in the statute.
-: Sure.
And your honor I would actually wave the argument
about the argument not being presented below
but regardless the fact of secretly recording
is when you have a third party
to the conversation listening in on the conversation
it necessarily would require somebody
who is not a party to the conversation
and in order to construct his hypothetical--
-: But you don't need to be,
it's not an, isn't it an either or?
You can either be secretly hearing
or secretly recording, right?
-: Sorry my lights turned out.
-: [Hon. Scott. Kafker] Yeah. -: Absolutely.
You can be, you could be either,
however in order to find a secret hearing,
Mr. Curtatone has had to envision a situation
in which he was speaking to Kevin Cullen
and Kurt Minihane was eavesdropping on that conversation.
However-- -: [Hon. Scott. Kafker] So,
I'm not sure I follow that cause I mean,
Mr. Kesten hasn't presented this quite like that
but is I mean,
Mr. Mr. it's clear he's not being secretly recorded.
At least it's clear to me
but Mr. Minihane is sort of secretly hearing this in a sense
because he's, he think I could see there's a difference
between secretly hearing and secretly recording here
because he surreptitiously hearing it, right.
I mean I guess.
-: But he's a party to the conversation.
So he can't be surreptitiously hearing his own conversation
that to me does not make any sense
that the statute clearly envisions a situation
in which the police are listening in on a conversation
to which they are not a party.
Remember that the statute is a one party--
-: So if, can I ask one second.
So if Mr. Cullen called up Mr. Curtatone and said,
"I'm recording this I'm all alone".
And Mr. Minihane was listening in
would he be secretly hearing this?
-: You mean you're assuming
that there was an actual Kevin Cullen present?
-: Yeah.
I'm just trying to understand Aaron Moss: sure.
-: what secretly hearing means Aaron Moss: Yeah.
If it's different from secretly recording.
-: Yeah, absolutely.
If there was, if Kevin Cullen
was interviewing mayor Curtatone
and Mr. Minihane or anybody else was listening in
then that would be secretly hearing
because there is no-- -: Isn't that what Mr. Kesten
sort of indirectly making that argument
by saying he's pretending to be Cullen
he's secretly hearing this.
I mean like, he's not quite doing that
but it seems like that's his better argument that--
-: But it requires you to assume
and to assume an imaginary conversation
between Mr. Cullen and Mr. Curtatone
to which Mr. Minihane is listening in
but in fact-- Hon. Scott: But doesn't--
-: there were only two parties to the conversation.
-: But doesn't Mr. Minihane create
that imaginary conversation by pretending to be
I mean, he's pretending to be Mr. Cullen.
So there is an imaginary element to this.
Isn't there?
I mean it's--
-: Yeah but, there's certainly an imaginary element
but as I said, Mr. Minihane was a party
in actuality was a party to that conversation.
There was no conversation with Mr. Cullen
and so therefore it would, it's just fictional to say
that there were three parties
and Mr. Minihane was listening in.
-: I'm just trying to get a sense
of what secretly hearing means if it's different--
-: Yeah and I
-: and why this isn't that
but I understand your argument
because he is the person on the phone
he can't be you know, a separate secret hearer or something.
-: Right.
And just, if we remember what the statute is about
it was designed to provide safeguards
with respect to wiretapping
which the legislature determined was important
to allow the police to do in order to stop organized crime.
And so you have a one-party consent
with regard to any conversations
in which the police are participating.
But with respect to the police listening in
on another conversation between two different parties
there are different set of rules that apply,
and in that situation if the police are listening in
they would be secretly hearing that conversation
unless they go through the appropriate protocols
that are laid out in the statute.
I think that it's important to remember
that if we were to interpret the statute in the way
that mayor Curtatone is asking your honors to
that it would raise a whole host of issues
that are constitutional in nature
that the court does not need to
and should not be waiting into.
And there are issues regarding,
given that this is a content neutral statute
we would be raising issues regarding
the type of speech that actually gave rise
to a violation of the statute.
Here you have a situation where it's the identity
of the person doing the recording.
In another case it could be that the,
in this case Mr. Minihane promised
that he would write a certain type of story
about Mr. Curtatone and perhaps the story turns out
to be different than it was promised.
There may be any other number of issues
that would all-- -: One of the, Mr. Moss
Mr. Moss, if I can interrupt you.
I think one of the issues you may have raised in the brief
was if you actually blend the secretly recording
with the consent that there might be implications
for investigatory reporting?
-: Sure, yeah.
Absolutely.
Because if you take this to mean
that the person who is being recorded needs
to fully understand all the aspects
or the identity certainly of the person doing the recording
then even if that person does not affirmatively say
that he is somebody else,
if he is blending into a crowd if he's
for example, shows up at the Capitol wearing a Maga hat,
in order to interview the people
who are storming the Capitol
the person being recorded could then later say,
"well I assumed that this was one of us
and so therefore I spoke to him",
but it would raise any number of issues
that would prevent the legitimate news gathering.
And I think this is what's very important
about the project Veritas case,
is that the news gathering function
is just as important for the first amendment
as the publication and dissemination aspect
of the first amendment.
And of course in Jackson this court specifically said
that the actual knowledge of the recording
is the proper standard so we don't need
to get into all these subjective issues
about what was in the head of the person recording
and sticking to the statutory interpretation
that this court has adopted for the past 40 years
would allow us to continue
to avoid these important constitutional issues
that would otherwise be raised.
Unless there are any other questions.
I would just suggest that,
of course the superior court needs to be affirmed.
-: Okay.
-: Thank you very much counsel.
-: Thank you counsel.