The Supreme Court has refused to accept an appeal from Project Veritas, the investigative journalism organization founded by James O’Keefe, after an appeals court rejected the group’s First Amendment-based challenge to a Massachusetts law forbidding secret recordings.
If the justices had granted the petition, it would have been the first time the nation’s highest court had addressed the First Amendment implications of secret audio recordings, according to SCOTUSblog.
Benjamin Barr, counsel of record for Project Veritas, was disheartened by the ruling.
“We are disappointed the Supreme Court decided not to hear this matter,” Barr said in an emailed statement to The Epoch Times.
“Project Veritas believes that citizens have a right to understand what their government does when the public isn’t watching. This Massachusetts law criminalizes a critical investigative tool, and in the process, injures the First Amendment rights of all Americans.”
Before founding Project Veritas, which exposes governmental and corporate wrongdoing, O’Keefe rocketed to fame in 2009 when, working with Hannah Giles, he shot undercover videos of employees of the radical left-wing Association of Community Organizations for Reform Now (ACORN) who were assisting the two journalists with tax evasion and other paperwork in order to create a fictitious child prostitution business.
The videos brought down the notorious group that was frequently implicated in voter-registration fraud schemes and that Barack Obama worked with in his community organizing days before he became president.
More recently, the FBI searched the Mamaroneck, New York, home of O’Keefe on Nov. 6 and seized his cellphones, reportedly as part of a court-ordered investigation into the theft of a diary belonging to Ashley Biden, daughter of President Joe Biden. Unlike other media outlets, Project Veritas didn’t publish the contents of the diary because its authenticity couldn’t be confirmed and turned it over to law enforcement, O’Keefe has said.
The ACLU and the Committee to Protect Journalists condemned the raid on O’Keefe’s home.
Project Veritas is also suing The New York Times for defamation. In March, New York Supreme Court Justice Charles Wood ruled the newspaper had spread deceptive claims about the group. Wood refused to grant the newspaper’s motion to dismiss the lawsuit, so the litigation continues.
The Supreme Court case, Project Veritas Action Fund v. Rollins, court file 20-1598, comes from the U.S. Court of Appeals for the 1st Circuit. The unsigned order denying the petition for certiorari, or review, was issued Nov. 22. The respondent, Rachael S. Rollins, a Democrat, was sued in her official capacity as district attorney for Suffolk County, Massachusetts.
The Massachusetts law makes it a felony to secretly record the oral communications of anyone other than a law enforcement officer.
The law “does great damage to an irreplaceable and important form of newsgathering,” according to the petition filed with the Supreme Court on May 12.
“Project Veritas Action Fund regularly uses secret audio recording to capture newsworthy information and report it to the public. Realizing Massachusetts law banned it from operating in the state, Project Veritas Action Fund challenged the reach of Massachusetts General Laws chapter 272, section 99.”
In December 2018, U.S. District Judge Patti B. Staris ruled in favor of Project Veritas, finding that individuals possess the right to make secret recordings of public officials, including police, as they go about their governmental duties.
“This is not to say that police and government officials have no privacy interests,” Staris wrote. “However, the diminished privacy interests of government officials performing their duties in public must be balanced by the First Amendment interest in newsgathering and information-dissemination.”
Later, a federal appeals court disagreed and overturned the judge’s ruling.
After acknowledging Project Veritas had plans to make secret recordings, the 1st Circuit found the mere existence of those unexecuted plans didn’t have the legal effect of creating a real and concrete controversy that it could adjudicate. The panel also ruled the law “was not facially overbroad,” the petition noted.
Boston-based Rollins praised the Supreme Court for leaving the appeals court’s ruling in place.
“The 1st Circuit got it right with its carefully considered December 2020 decision, which protects an individual’s right to record police in the course of their work, while also ensuring the rights of private individuals who approach public employees for help,” Rollins told The Epoch Times in an emailed statement.
“Today’s announcement that the Supreme Court will not disturb that decision provides all of the parties involved, as well as members of the community, with a clear understanding of the path forward.”