Correction: An earlier version of this story included an inaccurate interpretation of Massachusetts state law. Under state law, in order for a recording of a conversation to be considered legal, it has to be done openly, with narrow exceptions.
Project Veritas, the group that was apparently caught red-handed trying to dupe The Washington Post this week, is challenging the legality of a Massachusetts law that makes it a crime to secretly record conversations.
Project Veritas Action Fund, an affiliate of the group that uses deceptive tactics and secret taping to expose alleged bias among journalists, is suing Suffolk District Attorney Daniel F. Conley in federal court, claiming a state law on recording conversations is overly broad and tantamount to censorship.
Under state law, in order for a recording of a conversation to be considered legal, it has to be done openly, with narrow exceptions.
Project Veritas was founded by James O’Keefe, a conservative activist who has made headlines in recent years for releasing covert recordings. This week, his group was once again enmeshed in controversy, after Project Veritas was connected to a woman who falsely claimed that Alabama Senate candidate Roy Moore had impregnated her as a teenager. The woman tried to get The Washington Post to publish her account, but the paper sniffed out the apparent hoax.
In Massachusetts, Veritas said, its undercover information-gathering “could result in criminal charges and civil lawsuits,” according to its lawsuit filed in March 2016 in US District Court in Boston.
Project Veritas is “unconstitutionally restrained by an overbroad statute prohibiting the interception and disclosure of oral communications,” the organization argued in court papers.
Conley, who is being represented by Massachusetts Attorney General Maura Healey’s office, has filed routine court papers rejecting the legal basis for the lawsuit. Conley spokesman Jake Wark declined to comment, referring questions to Healey’s office.
In court papers, Assistant Attorney General Eric A. Haskell, representing Conley, said, “The awareness that one is being recorded is significant to both public employees and the private citizens who interact with them.”
Under state law, Project Veritas “remains free to surreptitiously eavesdrop and memorialize what it hears in notes, or to surreptitiously record visual content only,” Haskell pointed out in court papers.
Beacon Hill lawmakers were concerned about privacy when they enacted the law.
In a preamble to the law, they wrote that the “uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth. Therefore, the secret use of such devices by private individuals must be prohibited.”
In the suit, Project Veritas Action Fund said it wanted to “engage in undercover investigative journalism projects in Massachusetts.” Specifically, the group said, it wanted to probe instances of landlord malfeasance and investigate the trustworthiness of public officials, including police officers.
Veritas, in its complaint, wanted a federal judge to rule that provisions of Massachusetts state law are unconstitutional.
The case is ongoing. Filings were made last week for a timetable for fact discovery, dispositive motions, and a summary judgment hearing. Discovery must be completed by Jan. 26, 2018, according to a joint motion filed last week.
Massachusetts law makes it a felony to make a secret recording of a speech said Veritas’s attorney, Stephen R. Klein. He said that the state’s law means there is “unequivocal censorship” of secret recordings “unless you’re the police.” (Police have to get a warrant in order to do one-party recording.)
Klein said Veritas was considering undertaking projects in Suffolk County, which is why Conley is named as a defendant.
Earlier this week, the Post reported that a woman had approached the paper, claiming that she had a sexual relationship with Moore, the Republican candidate for US Senate in Alabama, in 1992 that led to an abortion when she was 15.
The Post did not publish an article regarding her unsubstantiated story, and on Monday reporters from that paper saw the woman walk into Project Veritas offices in New York, raising questions about whether she was part of an effort to discredit news outlets that have reported sexual misconduct allegations leveled against Moore.
Multiple women have said Moore pursued them when they were teenagers and he was in his early 30s. Moore has denied any wrongdoing.
The episode with the Washington Post was far from Project Veritas’s first foray into controversy.
In 2009, O’Keefe, the group’s founder, became notorious for selectively editing videos about ACORN, the Association of Community Organizers for Reform Now, which backed efforts to register voters in urban and other poor areas of the country.
A year later, he pleaded guilty to misdemeanor charges of entering federal property under false pretenses after trying to tamper with the phones in the office of US Senator Mary Landrieu, a Louisiana Democrat.
In February of this year, O’Keefe released what he said was 119 hours of raw audio secretly recorded inside CNN’s Atlanta headquarters in 2009. O’Keefe has also published secretly recorded video of New York Times staffers.
Material from The Associated Press and The Washington Post was used in this report. John R. Ellement of Globe staff contributed to this report. Danny McDonald can be reached at firstname.lastname@example.org. Follow him on Twitter @Danny__McDonald.