Jean v. Massachusetts State Police

• Decision Date: 22 June 2007
• Docket Number: No. 06-1775.,06-1775.
• Citation: 492 F.3d 24
• Parties: Mary T. JEAN, Plaintiff, Appellee, v. MASSACHUSETTS STATE POLICE, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

492 F.3d 24

Mary T. JEAN, Plaintiff, Appellee, v. MASSACHUSETTS STATE POLICE, et al., Defendants, Appellants.

No. 06-1775.

United States Court of Appeals, First Circuit.

Heard November 6, 2006.

Decided June 22, 2007.

Ronald F. Kehoe, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellants.

Eric B. Hermanson, with whom Sara E. Solfanelli, Choate, Hall & Stewart LLP, John Reinstein, and American Civil Liberties

Union of Massachusetts were on brief, for appellee.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

This case presents the question of whether the First Amendment prevents Massachusetts law enforcement officials from interfering with an individual's internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded. The appellant state police officers challenge the district court's grant of a preliminary injunction enjoining them from taking any action that interferes with appellee Mary Jean's posting of the recording on a website. We find this case materially indistinguishable from the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), and thus conclude that Jean has a reasonable likelihood of success on the merits of her claim that the First Amendment protects the posting of a recording under such circumstances. Consequently, we uphold the preliminary injunction.

I.

A. Factual Background

The facts are largely undisputed; where disputes exist, they do not affect the outcome of this appeal.

Jean, a local political activist in Worcester, Massachusetts, maintained a website displaying articles and other information critical of former Worcester County District Attorney John Conte.¹ In October 2005, Paul Pechonis contacted Jean through her website. They had never met previously. Pechonis explained that, on September 29, eight armed State Police troopers arrested him in his home on a misdemeanor charge. He met the officers at the front door and allowed them to handcuff him. The officers then conducted a warrantless search of his entire house. The arrest was both audiotaped and videotaped by a "nanny-cam," a motion-activated camera used by parents to monitor children's activities within the home. The parties contest whether the recording was accidental; this fact is immaterial to the outcome of the case.

Pechonis provided Jean a copy of the audio/video recording. We assume, for purposes of this appeal, that when Jean accepted the tape she had reason to know that it had been illegally recorded. On January 29, 2006, Jean posted the recording on her website accompanied by an editorial comment critical of Conte's performance in office.

By letter dated February 14, the State Police advised Jean that her actions violated Mass. Gen. Laws ch. 272, § 99 ("section 99"), and were subject to prosecution as a felony.² The letter stated that, if Jean did not "cease and desist, within 48 hours of receipt of this letter, from posting this unlawful tape on the internet or any other publicly accessible site," the police would "refer this matter to the District Attorney's office for further investigation and possible prosecution." The police sent a second letter on March 29, which clarified the previous letter by stating that, given the statute's limitation to "wire or oral communications," Jean would not be in violation if she removed the audio portion of the recording from her website.

B. Procedural History

On February 17, 2006, Jean filed a complaint in federal district court in Massachusetts seeking a temporary restraining order and preliminary and permanent injunctive relief against the Massachusetts State Police, State Police Superintendent Thomas G. Robbins, and Attorney General Thomas Reilly in their individual and official capacities (collectively, "the police").³ Citing her right to free speech under the First Amendment, Jean sought to preclude defendants from threatening her with prosecution or enforcing section 99 against her. The district court granted a temporary restraining order preventing the police from interfering with Jean's "disclosure, use, or display, including posting on the internet," of the audio/video recording.

After briefing and a hearing, the court granted the request for a preliminary injunction on April 7. Finding the case controlled by Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001), the court noted that Jean played no part in the recording of the video, that she had "obtained the tape lawfully," and that the videotape related to a "matter of public concern." The court concluded that Jean had demonstrated a likelihood of success on the merits of her First Amendment claim, that irreparable harm would result from the absence of an injunction, and that the balance of burdens and public interests weighed in favor of Jean. Consequently, it granted the preliminary injunction. This appeal ensued.

II.

A. Standard of Review

Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to hear an interlocutory appeal of an order granting a preliminary injunction. We review the grant or denial of a preliminary injunction for abuse of discretion. Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005). Within that framework, "findings of fact are reviewed for clear error and issues of law are reviewed de novo." Id. Thus, "we will set aside a district court's ruling on a preliminary injunction motion only if the court clearly erred in assessing the facts, misapprehended the applicable legal principles, or otherwise is shown to have abused its discretion." Id.

In considering the motion for a preliminary injunction, a district court weighs four factors: (1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8, 11 (1st Cir.2004). The police contest only the first factor: Jean's likelihood of success on the merits. That inquiry is the most important part of the preliminary injunction assessment: "[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity." New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002). Moreover, to the extent that the police could have argued that the other three factors assist in demonstrating abuse of discretion by the district court, they have now waived those arguments by failing to raise them on appeal.

Thus, the question before us is whether the district court erred in granting a preliminary injunction prohibiting the enforcement of Mass. Gen. Laws ch. 272, § 99 against Jean for her receipt and internet posting of the audio/video recording of Pechonis' arrest. Like the district court, we evaluate whether, in light of the record before us, she has a reasonable likelihood of success on the merits.

B. Bartnicki v. Vopper

We agree with the district court that this case is controlled by the Supreme Court's decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). Therefore, we must examine that decision closely before applying it to the facts of this case.

1. Background

In Bartnicki, the Supreme Court considered "what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication." Id. at 517, 121 S.Ct. 1753. The dispute in Bartnicki arose during contentious collective bargaining negotiations between a Pennsylvania school board and a union representing teachers at the local high school. An unidentified person intercepted and recorded a cellular phone call between the union's chief negotiator and the president of the local union, during which the president stated: "If they're not gonna move for three percent, we're gonna have to go to their, their homes.... To blow off their front porches...." Id. at 518-19, 121 S.Ct. 1753 (first omission in original)(internal quotation marks omitted).

Jack Yocum, the head of a local taxpayer's organization, subsequently found a recording of the intercepted conversation in his mailbox. He played the tape for members of the school board and later delivered the tape to Frederick Vopper, a radio commentator, who played the tape on his public affairs talk show. The union officials brought an action for damages under federal and state wiretap statutes against Yocum and Vopper, who invoked their First Amendment right to speak on issues of public importance.

The relevant provision of the federal wiretap statute, 18 U.S.C. § 2511(1)(c), provides that any person who "intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this subsection" may be sued. The Pennsylvania state wiretap statute contains a similar provision. 18 Pa. Cons.Stat. § 5703. Both statutory schemes also provide for recovery of damages for violations. 18 U.S.C. § 2520(c)(2); 18 Pa. Cons.Stat. § 5725(a).

Following discovery, the parties filed cross-motions for summary judgment before the district court. The court denied both motions and granted a motion for an interlocutory appeal to the Third Circuit. That court concluded that the statutes were invalid as applied because they deterred significantly more speech than was necessary to protect the privacy interests at stake, and...