Court: District Court, D. Massachusetts; September 6, 2017; Federal District Court
Project Veritas Action Fund, a news gathering organization, filed a motion for a preliminary injunction against Suffolk County District Attorney Daniel F. Conley to prevent the enforcement of the Massachusetts Wiretap Statute, claiming it infringes on First and Fourteenth Amendment rights by banning secret recordings of public officials in public spaces. The Defendant's motion to dismiss was based on ripeness grounds. The Court noted its prior rulings related to Project Veritas and a companion case, ultimately allowing the motion to dismiss without prejudice.
The factual background states that Project Veritas specializes in undercover journalism, often involving secret recordings in public areas. The organization has successfully uncovered issues related to political campaigns and voter registration laws through similar methods in other states but has not conducted such activities in Massachusetts due to fears of legal repercussions under the Wiretap Statute. Project Veritas wishes to investigate public debates over 'sanctuary cities' and the immigration policies of Boston officials.
The Court evaluated the ripeness of the claim under Federal Rule of Civil Procedure 12(b)(1), taking the facts in the complaint as true and allowing for reasonable inferences. The Defendant did not pursue discovery regarding the ripeness issue.
Federal court jurisdiction is limited to actual "Cases" and "Controversies" as defined by Article III of the U.S. Constitution, with standing and ripeness being key justiciability doctrines derived from this article. Both doctrines aim to exclude speculative disputes from federal court consideration, with ripeness specifically addressing claims tied to uncertain future events. For a claim to be ripe, there must be a substantial and immediate controversy between parties with adverse legal interests, warranting judicial relief. The burden lies with the plaintiff to demonstrate ripeness, including the need to show imminent injury for facial challenges to statutes.
Ripeness assessment hinges on two factors: the fitness of issues for judicial decision and the hardship faced by the parties if court consideration is delayed. The fitness prong has jurisdictional aspects (whether a live controversy exists) and prudential aspects (whether judicial restraint is warranted). The hardship prong is concerned with the potential harm to parties from delaying a decision, where mere possibilities of future injury typically do not suffice as hardship unless they cause present detriment. However, in cases involving free speech and credible threats of prosecution under a statute, plaintiffs are not required to wait for criminal prosecution to seek relief. Additionally, concerns about chilling effects on free speech may relax ripeness requirements. Project Veritas claims that Section 99 prevents it from investigating and reporting on issues related to "sanctuary cities" in Massachusetts, specifically by secretly recording government officials in public spaces to understand their views on immigration policy and deportation.
James O’Keefe, President of Project Veritas, affirmed under penalty of perjury that the statements in Project Veritas’ First Amended Verified Complaint regarding its activities are accurate. Project Veritas claims it cannot specify details about its intended recordings due to the unpredictable nature of investigations. It admitted not pursuing investigations in 'sanctuary cities' and referenced a legal case involving Chicago Mayor Rahm Emanuel to highlight the issue's relevance, noting that surreptitious recordings of police in public are protected under Illinois law. Defendant Conley seeks to dismiss the case under Federal Rule of Civil Procedure 12(b)(1), arguing that Project Veritas' vague allegations lack a factual basis for judicial review, as they do not adequately define where, how, or whom they intend to record. This lack of specificity prevents the Court from evaluating whether such recordings would disrupt public employees' duties, an important consideration noted in prior case law. Conley emphasizes the government's interest in regulating First Amendment activities that could interfere with law enforcement functions or pose safety risks. He contends that without concrete facts, the Court can only speculate, rendering the case advisory in nature. However, Conley does not contest the ripeness of the claim based on potential hardship. Project Veritas argues that the relaxed ripeness standards for First Amendment cases justify its claim being ripe for review, asserting that concerns over chilling effects can warrant this relaxation, as indicated in relevant case law.
Project Veritas asserts that the First Circuit has established that a credible threat of enforcement allows a speaker to challenge a law without needing to demonstrate an intention to violate it or wait for prosecution. This chilling effect on free speech has reportedly already occurred. The First Circuit presumes a credible threat of prosecution for pre-enforcement challenges to recently enacted statutes that restrict expressive activities, unless compelling evidence suggests otherwise. Section 99, concerning the recording of police officers, is deemed non-moribund and has been reaffirmed by the Supreme Judicial Court as enforceable. During a hearing, the opposing counsel did not deny the potential enforcement of Section 99.
Project Veritas intends to investigate and secretly record government officials regarding immigration policy but has provided insufficient detail to meet the plausibility standard for judicial review. The concept of ripeness assesses whether the anticipated injury justifies judicial intervention, particularly concerning the chilling effect on First Amendment rights. Prior cases recognized this injury when plaintiffs had previously engaged in activities that the statute prohibited. For example, in Mangual, the plaintiff had been threatened with prosecution for articles on government corruption and intended to continue similar reporting. Other cited cases involved plaintiffs who had previously recorded police interactions or faced similar restrictions. The court emphasized the necessity for a plausible claim of intent to engage in chilled activities.
The party seeking jurisdiction bears the burden of proving ripeness, which requires meeting the same pleading standard as under Rule 12(b)(6)—the plaintiffs must present a claim that is plausible on its face. A claim is deemed not ripe if it depends on uncertain future events that may not occur. In this case, the Court finds that Project Veritas has failed to demonstrate sufficient immediacy, reality, or hardship to justify judicial relief under both constitutional and prudential standards, even with the relaxed ripeness standard for First Amendment claims. The organization did not provide details such as plans, expenditures, or past activities that would indicate a present intent to conduct a prohibited investigation. Instead, it merely mentioned a potential investigation concerning sanctuary cities in Suffolk County to claim its First Amendment rights were being infringed. Consequently, while the ripeness burden is not overly demanding, it still exists. The Court has granted the Motion to Dismiss without prejudice, pursuant to Fed. R. Civ. P. 12(b)(1).
