BOSTON (Legal Newsline) - The mayor of Somerville, Mass.. lost his bid to sue Barstool Sports after one of its writers hoodwinked him into agreeing to a recorded interview by claiming to work for the Boston Globe.
Joseph A. Curtatone accused Barstool Sports of violating the Massachusetts wiretap act, which prohibits intercepting or secretly recording telephone conversations. But the Massachusetts Supreme Judicial Court rejected that interpretation of the law, saying Curtatone agreed to the interview and the true identity of the person on the other end of the line was irrelevant.
“The recording at issue was not made secretly and, therefore, there was no interception under the act,” the state’s highest court concluded in a June 14 decision.
On May 29, 2019, the Boston Herald published an article criticizing the Boston Bruins for distributing Barstool Sports promotional towels to attendees. Barstool Sports operates a blog with "a reputation for publishing crass content," the court noted.
Two days later, Curtatone published a statement on his own web page also criticizing the towel giveaway, saying it was “an attempt to disguise misogyny, racism & general right-wing lunacy under a 'sports' heading.” Barstool’s president, Dave Portnoy, responded by calling Curtatone a “professional” and “legitimate” criminal on his personal web page.
“Portnoy also accused Curtatone's family of engaging in rape, extortion, stabbing, and arson,” the court said.
Writer Kirk Minehane then tried to interview Curtatone, but he refused. So Minehane called a Somerville public information officer and misrepresented himself as Kevin Cullen of the Boston Globe. Curtatone agreed to the interview with the fake Globe reporter and consented to be recorded. Barstool then posted the recording online.
“In other words, in Curtatone's view, Minihane heard and recorded the call secretly because his identity was a secret,” the court said.
The key question then, the court said, is whether the recording was made “secretly.” Examining the wording of the statute, the court concluded that legislators intended the word to mean “something that is studiously concealed,” citing Black’s Law Dictionary from 1622.
“The identity of the party recording the communication or, indeed, the truthfulness with which that identity was asserted is irrelevant; rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against `interception’ within the act,” the court said.
As for Curtatone’s privacy claims, the court said “it is also relevant to note that he plaintiff, the mayor of a city of more than 80,000 people believed he was speaking on the record to a newspaper reporter, circumstances in which the Commonwealth's interest in protecting his privacy is significantly limited.”