Shock Jock Takes On Local Politician

Bob Stetson:      On May 28th, 2019, the Boston Bruins played Game two of the Stanley Cup finals against the St Louis Blues. Before the game, the Bruins distributed black and gold playoff towels for the fans to wave during the game and to keep as a souvenir. The towels included the name and logo of one of their business partners and sponsors during the playoff run.

Barstool Sports is a multichannel media company with an extremely popular sports and pop culture blog. The day after the game, the Boston Herald published an opinion article which blasted the Bruins partnership with Barstool Sports because of barstools quote “history of sexual harassment and misogyny.”

Sommerville Mayor Joseph Curtatone got in on the act as well, issuing a statement condemning the partnership because of barstools quote “misogyny, racism and general right-wing lunacy.”

Barstool fought back hard against these accusations. Its founder accused Mayor Curtatone of criminal activity and one of its most prominent personalities, Kirk Minihane, a popular TV host and radio personality, sought to interview Curtatone about these accusations. Mayor Curtatone declined the interview, but Minihane got his Curtatone interview anyway. Just not as Kirk Minihane.

Minihane posed as Boston Globe reporter Kevin Cullen and even disguised his voice to make it sound like the well-known Globe reporter.

Minihane, as Cullen, asked for Curtatone permission to record the interview and Curtatone agreed. Barstool published the interview recording a few days later. Mayor Curtatone then filed a lawsuit against Barstool and Minihane under the Massachusetts Wiretap Act. The Wiretap Act prohibits quote “secret recordings.”

A Superior Court judge later dismissed the case because the recording at issue was not secret. Rather, it was fully disclosed and agreed to by Curtaton. Curtaton appealed in the Massachusetts Supreme Judicial Court took the appeal on its own initiative.

This case pits a very visible local mayor against a very popular media company and shock jock. This is Curtatone v. Barstool Sports.

Welcome to legal judgments, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I’m Bob Stetson, a Boston based trial lawyer at Bernkopf Goodman, which sponsors this podcast. Today, we’re looking at a high-profile case between the mayor of a large city just north of Boston and a popular media company and TV and radio personality.

With me today is Andy Caplan, a litigator and trial lawyer at Twohig Caplan. He’s a partner and co-founder of the firm, and he successfully represented Barstool and Minihane in this case. Welcome, Andy. Thanks for joining.

Andy Caplan:     Thanks for having me.

Bob:       So, let’s start with the SJC’s decision in your client’s favor. This decision stemmed from a motion to dismiss in the Superior Court, which, given the standard, is a very difficult motion to win. Now here, the Wiretap Act prohibits the willful interception of any wire or oral communication.

Interception, in turn, is defined in the statute as and I’m going to quote here, “to secretly here or secretly record any person other than a person given prior authority by all parties to such communication.”

The Superior Court first, and then the SJC on appeal, looked at this language, the plain language of the statute, and concluded that in order for the statute to apply, the recording had to be quote secret hidden from the recorded party. Here, because Minihane stated that he was on the record, that he was recording the interview and that in fact, Curtaton agreed to the recording.

The court found that the secrecy requirement could not be satisfied under these circumstances. But here’s the question, Andy. There was clearly an element of secrecy here because Minihane concealed his identity to Curtaton, and therefore it’s really undisputed that he used an element of deception to obtain this interview in the first place.

Why wasn’t that enough under the statute?

Andy:    So that is the argument that the mayor’s attorney Lenny Kesten, made. He argued that since her trip, the mayor pretended to be Kevin Cullen, Kirk’s identity was secret and that was his main argument. And at oral argument, Justice Kafker picked up on that and pressed my colleague who argued for our side, Aaron Moss, why isn’t the mayor correct that Kirk secretly heard the call? And the answer is because the plain meaning of this statute is, it prohibits secret recordings. The fact of the recording is what’s secret. It doesn’t matter what the identity of the listener is, as long as the fact of your being recorded is known to you. It’s not secret and the statute is not violated. And we even had an SJC case pretty much on point where a plaintiff sued for a wiretap violation and claimed that he hadn’t consented to the recording. But in that case, he thought the police were recording him, and it was actually someone else.  The SJC said, “You knew you were being recorded, and it doesn’t matter that you were confused about who was recording you.”

All that matters is, is the is the fact that you’re being recorded a secret. And here, since the mayor alleged Kirk told him he was recorded, it wasn’t secret, it wasn’t a violation.

Bob:       So, the critical point here is whether the recording is secret or not. And that’s that’s sort of evident when you look at the preamble of the wiretap statute. It really says, you know that it’s aimed against quote “secret recordings.” But what’s interesting is that unlike several other terms that are specifically identified and defined in this statute, the term secret is actually not defined in the statute. So the court, in its analysis, sort of went a little bit beyond just the plain meaning they sort of talked about, Well, what’s the aim of this statute? They said the aim is against electronic eavesdropping. And so my question to you is, you know, why was this? Why was this wiretap act passed in the first place? What is it all about and how did that factor into your litigation strategy and ultimately the court’s decision?

Andy:    So originally, the legislative history tells us that the legislature passed the wiretap act as an additional law enforcement tool to go after organized crime to give the police certain wiretapping abilities and to put rules, do’s and don’ts around it. But obviously, it has a broader application. If I were to tap into your phone lines and record your phone calls, I would be violating the statute. And I think the SJC recognized that the interest being protected is against the unwitting recording of a phone conversation or the unwitting recording of communications. And since that was not what was happening here, the court said this is far afield from what the statutes concerned with and it’s not a violation.

Bob:       I want to talk just briefly a bit more about the plain language of the statute. Because that really was sort of, the focal point of, well, actually the Superior Court judge’s Decision, as well as the SJC decision. And what both courts said was there are two elements that have to be satisfied in order to have a wiretap act violation number one, as we’ve been talking about. There’s got to be a secret recording. But number two, there has to be a lack of consent by the recorded party now. Here in this case, that clearly there was no secret recording and that that seems the just and correct decision on many levels.

But just in terms of the broader application of this decision, it seems to almost right out the lack of consent issue from the statute. So let me sort of say this a different way. If it’s a secret recording, clearly there’s not going to be consent because you don’t even know that recording’s happening.

If it’s not a secret recording, you clearly are at least implying consent to the recording because if you know it’s happening and you continue to talk, you could have walked away. You could have stopped talking. So at least there is some element of consent involved.

If that’s the case, hasn’t the SJC in this decision effectively written out that consent element from the statute?

Andy:    Yeah, well, there’s preexisting precedent from the SJC that says when a recording is not secret, the other elements of authorization is irrelevant because in order for there to be a violation, both of those elements must be satisfied. So if either element is not satisfied, there is no violation. To your point, why didn’t the legislature just pass a law that says it’s illegal to make a secret recording of someone else? Because once it’s… if it’s secret, there can’t be authorization, right? You make a good point, but we’d have to ask the legislature why they put the two requirements in there.

But the one thing I’d add is for any lawyers in the audience, you know, most lawyers are the average person on the street to the extent they think they know how the wiretap statute works in Massachusetts. Everyone says it’s a two-party consent state, right? I need your consent to record you and everyone’s wrong. That’s a myth, because so long as the other person knows they’re being recorded, you don’t need their permission because once you tell them they’re being recorded, they can hang up if they want. They don’t have to give consent.

Bob:       That’s so true, Andy.  There’s even that 50 state compendium on wiretap statutes that is floating around there on the internet. And you’re exactly right. Massachusetts is noted as a two-party consent state, and I agree with you. It just it’s when you really look at this decision and when you look at the language, that’s just simply not the case. So it’s a… it’s a funny, interesting side note about everybody’s perception of this law, versus how it actually works out.

Andy:    And here’s the funny thing about it.  The SJC conducted this oral argument largely on Zoom and a bunch of other ones in the SJC, and the Zoom was recorded, and no one asked anyone’s permission to record it. Right?

So, if they ruled against us, they basically would have open themselves up to being sued by every lawyer who participated in oral argument. And frankly, everyone that uses a zoom without, you know, getting consent would be susceptible to being sued, which is why Zoom just has the nice splashing notice recording.  And as long as I know it’s recorded, you’re good.

Bob:       Yeah, that gets that gets into a little bit about the policy implications of this decision, which I do want to come back to, but I do want to get to some of the details that I think the listeners are really going to be interested in.

You know, I found it very interesting that the complaint and even the SJC decision didn’t really delve into the substance of the Minihane Curtatone interview. But I certainly wanted to know what it was, so I listened to it, and I watched it and you know, look, Minihane challenged Curtatone, basically, “hey, you’re saying the stuff about Barstool, you got to back it up with facts. Give us something. What are you basing these allegations on?  Give us something,” and you know, more or less, Curtatone sort of, you know, he dodged and weaved and, you know, he thought he was talking to a friend. He kind of stuck to his talking points. At the end of it, I was sitting there saying, “Well, he didn’t say anything embarrassing,  I mean, you know, he didn’t back up his allegations, but it wasn’t, you know, there was nothing salacious in the interview.”

So the question, Andy, it seems like much ado about nothing. Why did Curtatone even bother filing this lawsuit?

Andy:    Virtue signaling. Politics. He thought that Barstool Sports was a good boogeyman that he could sue them, the allegedly misogynist, sexist, you know, every name in the book, and it was virtual signaling. So I assume he believes his constituents are liberal and would think that Barstool was bad.  And you know that that’s what it was about. So if you if you read his complaint, as I know you did, the first dozen or so paragraphs just sling mud at Barstool and Dave Portnoy and what bad people they are and what bad things they’ve supposedly done have nothing to do with the phone call on the recording. It was about signaling that he’s OK, he’s on the side of political correctness, and that’s why he brought it, in our opinion.

Bob:       Now I want to – I want to shift the facts. A little bit here, I want to give you a hypothetical so we can kind of get back to, you know, the sort of the implications of this decision. And so let’s assume for purposes of this hypothetical that Kevin Cullen and Curtatone have a long standing history together, trust, discretion, all that. And let’s say before the interview starts, Minihane says something to the effect of, here Minihane as Cullen says, something to the effect of, “Hey, listen, I’m going to record this just to make sure I get it accurate. But you know, if you want to say something off the record, just let me know. Just say ‘off the record.’ I’m going to keep recording, but I’m only going to do that. I’m not going to publish anything you say off the record and that I’m going to destroy the recording once I’m done writing my article.”

Curtatone says something really embarrassing or something salacious, but he precedes it by saying, “but this is off the record.”

Minihane releases the recording, you know, three days later. Under the SJC’s reasoning, as I read it, no wiretap act violation. So, the question for you, Andy, am I right? Is there a violation of the wiretap act here under my hypothetical? And if I and if I am right and that there’s not a violation, is there any cause of action at all?

Andy:    Yes. So, it’s not a wiretap violation for the straightforward reason that when you know you’re being recorded, it’s not secret and it’s not a violation. And there may be any number of other common law causes of action one might bring in your hypothetical or that may occur might have brought: fraud, misrepresentation, et cetera. You know, invasion of privacy, whatever, whatever. But I suspect the good mayor was operating under the misconception that we’re a two-party consent state, and because the consent was procured by fraud, he had a good wiretap claim and he put all his eggs in that basket, and he lost.

Just to add briefly, I can certainly appreciate that there’s a public policy argument that one might want to make it illegal for me to call you in your hypothetical. We might want to make it illegal, but as a fellow attorney, we know it’s not the court’s job to rewrite statutes to fix wrongs. This law doesn’t address your situation. If the Legislature thinks that there’s a plague on society of people making a phony phone calls and tricking people into being recorded, they can pass a new law if they think that it’s a big societal ill. I suspect it’s not that big of a problem. But this law doesn’t address that.

Bob:       Well, let’s turn it around a little bit and talk about, I think the other side of the policy argument, which I think you guys raised very effectively in in your brief, which is this this whole idea of, well, you don’t want to, you know, disinhibited or you don’t want to potentially punish, you know, the practice of undercover journalism. And you know, basically that as I take it, is where journalists sort of pose as someone else to get good information on bad actors and disclose these bad acts to the population. And that’s unquestionably a benefit to society. And so what I read that in your brief, I’m thinking, “OK, that’s that makes great sense from a policy argument.” But it reminded me that that that raises actually another really potentially powerful legal argument. That’s the First Amendment. The freedom of the press.

Now I know you guys didn’t necessarily have to go that route because you won at the motion to dismiss phase, and that was affirmed by the SJC and a thoughtful decision. But did you guys think about the First Amendment implications when you were kind of initially strategizing this and sort of mentioning the undercover journalism piece in your briefs? Or how, if at all, did the First Amendment factor into your strategy?

Andy:    Well, there’s no question that the First Amendment was implicit in our pointing out that, you know, recording public officials on matters that are under public discussion that have been covered in the Boston Herald has a First Amendment consideration.

And my colleagues at Greenberg Gloucester reached out to the ACLU and you may have noticed that they wrote us an amicus brief at the SJC, arguing to the court that they should not give an expansive interpretation to what’s illegal under the statute because you’re going to be stepping on the First Amendment.

You know, journalists and reporters gathering information from public officials has a significant First Amendment component. And you don’t want to stretch statutes and risk trampling on those First Amendment considerations.

Bob:       That’s no, that’s a good point, and that the ACLU brief, I did think was very persuasive. So. Andy, I got to know. How did you get involved in this very exciting and very interesting case?

Andy:    I got involved because I’m Kirk Minihan’s, personal attorney. If you’re a follower of the local sports media scene and you remember when it used to be one of the most popular radio sports talk personalities on WEEI and you had a very public falling out with them, he hired me to be his lawyer to help extricate him from that situation. And then ultimately to negotiate his new relationship with Barstool Sports based on my background, both in helping people in employment law situations, And I think he figured out for my social media that I was a listener and I understood the context of his business situation. So I’m his personal lawyer. And in that in that context, I sort of teamed up with barstools lead attorneys out of L.A. to work on this interesting case.

Bob:       Yeah, I was a I was an avid WEEI devotee, and just when Minihan left, I just I kind of left as well, quite frankly. So, I’m glad to hear that he landed on his feet over at Barstool. So last question for you, Andy and I ask every guest the same one.

What’s the teachable moment here? What did you learn from this case?

Andy:    You know, I learned from the case the actual holding, and because I was not a wiretap expert before we did the research, so I learned that Massachusetts is not just a two-party consent state. As long as someone knows you’re recording them, you’re good. It’s not a wiretap violation.

Bob:       Andy, congratulations on a tremendous victory. Thank you so much for joining us today.

Andy:    Thank you. I enjoyed it.

Bob:       That’s our show. Check out our show notes for more information on today’s case. Also, if you are involved in an interesting civil case or know about one that you think would be a good topic, reach out to me at rstetson@bg-llp.com.

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