## Facts

- Mary T. Jean, a Worcester political activist, operated a website critical of a local district attorney and related government conduct.
- State police arrested Paul Pechonis at his home on a misdemeanor charge; the arrest was followed by a warrantless search of the home.
- A motion-activated “nanny-cam” inside the home made an audio-video recording of the officers’ actions.
- Pechonis, previously unknown to Jean, contacted her after the incident and gave her a copy of the recording.
- For purposes of appeal, it was assumed Jean had reason to know when she received the recording that it had been made unlawfully under Massachusetts’ wiretap statute (Mass. Gen. Laws ch. 272, § 99).
- Jean posted the recording on her website with commentary criticizing public officials and highlighting alleged police misconduct.
- Massachusetts State Police sent Jean cease-and-desist letters asserting her online posting violated § 99 and threatened felony prosecution; a follow-up letter stated she could post the video if she removed the audio.
- Jean sued in federal court seeking declaratory and injunctive relief, claiming threatened enforcement violated the First Amendment; the district court entered a preliminary injunction preventing officials from interfering with her posting.

## Issues

1. Whether the First Amendment bars state officials from threatening to enforce Massachusetts’ wiretap statute against a person who posts an audio-video recording of police conduct, where the poster did not make the recording but had reason to know it was illegally recorded.
2. Whether a recipient-publisher may be treated as an aider, conspirator, or accessory to the unlawful interception based on receiving and disseminating the recording, such that First Amendment protection does not apply.
3. Whether the district court properly granted a preliminary injunction based on likelihood of success, irreparable harm, balance of hardships, and the public interest.

## Decision

- The First Circuit affirmed the preliminary injunction.
- The court held the case was materially indistinguishable from *Bartnicki v. Vopper* and that Jean showed a reasonable likelihood of success on her First Amendment claim.
- The court rejected the state police theory that Jean’s receipt and publication, without participation in the interception, made her an accessory outside constitutional protection.
- The court agreed that threats of prosecution would chill protected speech and constituted irreparable harm.
- The balance of harms and public interest favored protecting publication about official conduct, while leaving the statute enforceable against the original interceptor.

## Legal Principles

- The First Amendment generally protects publication of truthful information on matters of public concern when the publisher lawfully obtained the information and did not participate in the underlying illegality.
- A third party’s illegal interception, standing alone, does not remove constitutional protection from a non-intercepting publisher’s speech about public affairs, even if the publisher knows of the prior illegality.
- Government attempts to impose wiretap-statute liability on a publisher based solely on receipt and dissemination risk unconstitutional suppression of speech and cannot be sustained without proof of participation in the interception.
- In First Amendment cases, credible threats of criminal enforcement that deter speech typically satisfy irreparable harm for preliminary injunctive relief.
- Preliminary injunctive relief is appropriate where likely unconstitutional enforcement would suppress speech and the public interest favors disclosure about government actors performing official duties.

## Conclusion

The First Circuit upheld an injunction preventing state officials from interfering with Jean’s online posting of an audio-video recording of police conduct, concluding that, absent evidence she participated in the interception, the First Amendment likely protected her publication of lawfully obtained material addressing a matter of public concern despite her assumed knowledge that the recording was initially made illegally.


Jean v. Mass. State Police, 492 F.3d 24 (1st Cir. 2007)