In an appeal to the Massachusetts Supreme Judicial Court, Somerville Mayor Joe Curtatone alleged that he was secretly recorded and deceived by Barstool Sports podcaster Kirk Minihane during a taped conversation between the two in 2019. The appeal, which heard oral arguments on Feb. 1, came after Curtatone’s initial complaint was dismissed by a Middlesex judge last summer.
Curtatone originally sued Barstool in June 2019 after Minihane posed as Boston Globe columnist Kevin Cullen, a friend of Curtatone’s, during a phone interview with the Somerville mayor. Curtatone gave Minihane permission to record the conversation under the impression that he was speaking to Cullen, and Minihane later posted the interview in its entirety on Barstool’s website.
In his initial complaint, Curtatone claimed that because he was unaware that he was actually speaking to Minihane, the conversation was recorded criminally. He cited Section 99, a Massachusetts wiretapping statute that makes it illegal to record individuals without their knowledge.
The statute “makes it a criminal violation to record an individual without his/her consent,” Curtatone’s 2019 complaint, which also demanded that a jury preside over the case, read. “The ‘consent’ that Minihane obtained from Curtatone to the recording was obtained through fraud because [Minihane] impersonated a Boston Globe reporter.”
Middlesex Superior Court Judge Maureen Hogan dismissed the case in January 2020. She reasoned that because Curtatone was aware that he was being recorded, his complaint did not meet the parameters designated by the Massachusetts wiretapping law, regardless of whether the mayor knew that it was Minihane with whom he was speaking.
Curtatone appealed the decision in a brief dated in July 2020 to the Massachusetts Supreme Judicial Court. In court on Feb. 1, Curtatone’s attorney argued that the methods Minihane used to obtain the recording qualified it as a secret recording.
“[Curtatone] agreed to speak to a reporter that he knew, a friend,” Leonard Kesten, who represents the mayor, said. “The secret is that he agreed to a conversation with Kevin Cullen, and he was … deliberately deceived by Mr. Minihane.”
The claim, however, was disputed in court by justices who questioned the level of secrecy of the recording. Although Curtatone may not have known that it was Minihane who was recording him, Justice Scott Kafker argued that he was aware that his comments could be displayed publicly as part of an interview with a reporter.
A number of the justices also challenged the case’s legitimacy in terms of violations of Section 99, which historically has been used to prohibit police officers from secretly recording or listening in on conversations between members of the public.
“[Curtatone] understood he was being recorded,” Justice David Lowy said to Kesten. “Your interpretation might be better, I don’t know, although it has serious public policy and First Amendment implications, but the statute talks about secrecy. If you know you’re being recorded, you’re not secretly being recorded.”
Kesten, in response, argued that Curtatone had been fraudulently led to having the conversation recorded. He said that if you think you’re being recorded by one person, but someone else is actually recording you, then you’re being secretly recorded. Chief Justice Kimberly Budd acknowledged this, but questioned if the argument made the case an appropriate fit under Section 99.
“I understand why your client was not happy with it,” Chief Justice Budd said. “I understand that he was induced by fraud to give his consent, but I’m not sure that that fits within this particular statute.”
Aaron Moss, a Los Angeles-based attorney representing Barstool, argued to the court that Minihane did not secretly record Curtatone. He claimed that because Curtatone was aware of his being recorded, there was no violation of Section 99.
“We are going to assume, for the purposes of this argument, that this was a private conversation, even though Mayor Curtatone believed it was going to be published in The Boston Globe,” Moss said. “The key though, is that he had actual knowledge he was being recorded.”
Moss said to the court that ruling in favor of Curtatone could overrule decades of precedent and potentially introduce First Amendment concerns in regards to the gathering of news information through recorded interviews.
“I think that it’s important to remember that if we were to interpret the statute in the way that Mayor Curtatone is asking your honors to … it would raise a whole host of issues that are constitutional in nature,” Moss said.
Following the oral arguments presented by attorneys for both Curtatone and Barstool, the Massachusetts Supreme Judicial Court has not yet released its decision on the case.
The recorded 2019 interview in question between Curtatone and Minihane occurred after the Somerville mayor publicly criticized Barstool Sports, a website that has been controversial for many years due to accusations of racism and misogyny against members of the company.
Specifically, Curtatone questioned the Boston Bruins’ decision to allow Barstool to sponsor the rally towels at an NHL playoff game on May 29, 2019. He retweeted an Opinion column published in the Boston Herald by columnist Jessica Heslam that implored the Bruins to reconsider their relationship with the company.
“As a fairly rabid sports fan one of the more regrettable things I’ve seen is the attempt to disguise misogyny, racism & general right wing lunacy under a ‘sports’ heading,” Curtatone tweeted alongside the column in reference to Barstool Sports on May 31, 2019. “Our sports teams & local sports fans need to push back to stress that’s not us.”
In response, Barstool Sports Founder and President Dave Portnoy blasted Curtatone, calling on him to participate in a livestreamed conversation.
“If you live in Somerville, please tell your mayor that if he’s going to talk s— about @barstoolsports he should have the stones to back it up,” Portnoy tweeted.
Curtatone replied to Portnoy by once again criticizing him and Barstool in a tweet published on May 31, 2019.
“Man, talk about making my point. This guy is running a cult,” Curtatone tweeted in reference to Portnoy. “Brigade me all you want, but this is exactly why the @NHLBruins should have nothing to do with Barstool.”
In his June 2019 phone interview with Curtatone, Minihane — posing as Cullen — pressed Curtatone for evidence for his claims of racism against Barstool. During the conversation, Curtatone defended his position, saying that he believed that the Bruins were not being true to their goals of inclusivity towards both women and people of diverse backgrounds by partnering with Barstool.
Following the conversation, Minihane alleged on video that he had tried to reach Curtatone as himself with no response. He then claimed that when he reached out to representatives of Curtatone posing as Cullen, he received a quick response.
Curtatone’s original lawsuit denied having ever received a request for comment from Minihane as himself prior to the recorded June 2019 interview.
The American Civil Liberties Union of Massachusetts and the Reporters Committee for Freedom of the Press defended Minihane and Barstool in an amicus brief filed on Jan. 11, 2021. They claimed that a ruling in favor of Curtatone would have serious First Amendment implications in regards to freedom of the press and argued that Curtatone was not recorded secretly.
“The plain language of the Wiretap Statute does not require consent where a recording is not done secretly, regardless of whether the individual knows the identity of the person doing the recording,” the brief said.