Jean v. Massachusetts State Police

On September 29, 2005, eight armed troopers of the Massachusetts State Police (the state police) (defendant) arrested Paul Pechonis in his home on a misdemeanor charge and conducted a warrantless search there. Both the arrest and the search were captured by a motion-activated camera in Pechonis’s home. Mary T. Jean (plaintiff) was a political activist who received from Pechonis a copy of the audiovisual recording made by his camera. In January 2006, Jean posted the recording on her website, accompanied by a comment critical of a former district attorney. In a letter dated February 14, 2006, the state police advised Jean that her post violated Mass. Gen. Laws chapter 272, § 99, which prohibited intentional interception of wire or oral communication and disclosure of known intercepted communication. Section 99 defined interception as secret and unauthorized hearing, recording, or aiding of another’s hearing or recording of wire or oral communication. It also prohibited participating in a conspiracy to commit interception or serving as an accessory to another person who committed an interception. The state police’s letter threatened with Jean with possible criminal prosecution unless she removed her post within 48 hours of receiving the letter. Jean sued the state police and moved to preliminarily and permanently enjoin the state police from enforcing § 99 and from threatening her with prosecution. Jean asserted that the state police’s actions violated her right to free speech under the First Amendment. The district court agreed and entered a temporary restraining order preventing the state police from interfering with Jean’s disclosure, including posting on the internet, of the audiovisual recording. The district court later entered a preliminary injunction, finding that the case was controlled by Bartnicki v. Vopper, in which the Supreme Court ruled that disclosure to a school board of a recording of a private cell phone call was protected by the First Amendment. The state police appealed, arguing that its case was meaningfully distinguishable from Bartnicki, principally because in Bartnicki, the recording had been legally obtained under the state law, whereas Jean had violated § 99 by assisting, conspiring, or serving as an accessory to Pechonis’s violation of § 99.