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Thursday, May 23, 2019

Universal declaratory judgments

Chief Judge Saris of the District of Massachusetts entered a final judgment declaring invalid a Massachusetts law prohibiting surreptitious recording of government officials. This was two consolidated actions, one brought by two individuals and one brought by an investigative-journalism organization.

The court declined to issue a permanent injunction, finding that a declaratory judgment was sufficient, in part because:

Defendants have stated they will follow this Court's ruling, and the Court will take them at their word. . . .The Court "assume[s] that municipalities and public officers will do their duty when disputed questions have been finally adjudicated and the rights and liabilities of the parties have been finally determined . . ."

But what does it mean to follow the court's ruling? Does it mean not enforcing the law against the plaintiffs in these cases or does it mean not enforcing the law against anyone? That is, can a declaratory judgment be universal to protect beyond the named plaintiffs? Or must declaratory judgments be particularized, as injunctions must be (or so I argue). This affects what might trigger conversion of the D/J into an injunction-were the government to attempt to enforce the law against someone other than the plaintiffs.

The answer should be that a declaratory judgment must be as particularized as an injunction. Under the Article III/litigation-structure arguments from Sam Bray, Michael Morley, and me, the point is that any judicial remedy must be particularized because the remedy should resolve the dispute between the parties to the action and not beyond. In endorsing particularity in federal remedies, SCOTUS explicitly treated declaratory and injunction relief the same, as stopping enforcement of the challenged law only against the federal plaintiffs and leaving the state free to enforce against others who violate the statute. Moreover, declaratory judgments are a "milder" form of relief because non-coercive, compared with the "strong medicine" of an injunction. If so, it would not make sense for the milder remedy to have broader party effects than the stronger remedy. Finally, it would be odd for these plaintiffs to be able to convert to an injunction to stop enforcement of the law against someone else, just as one individual cannot ask a court to enjoin enforcement of a law against someone else.

Posted by Howard Wasserman on May 23, 2019 at 09:15 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink


Well Walter, you should be bit more concerned about offenders ( if already ) for many times, too many times, evidence is suppressed( although may totally implicate the offender or accused )because of illegal recording or monitoring or seizure and such. You wouldn't believe simply. And although the judge, would bet his life on it, that the accused is indeed the felon sought.

It is better so, over other alternatives. For, you must educate law agents, that they must adhere to the law and regulations. Becoming creative, and not brutal and too intrusive.

Well preached well reached. If you preach for ruling of law, you must by yourself, stick to it. Not circumvent it in no way.


Posted by: El roam | May 27, 2019 5:15:45 PM

Oh right, totally, I'm not thinking about private gossip or DRM infringement or anything like that. Only authorized official duties by empowered public officials, with a member of the public/constituency, etc. My concern is such an official saying on a phone call that (say) "judges can totally ignore you if they want to, and there's not a damn thing you or anybody else can do about it, no matter what the laws say" (this by a staff member of the AOC Administrative Office of the U.S. Courts concerning a Judicial Misconduct proceeding before the Judicial Conference). And then denying afterwards they said any such thing. Say.

Posted by: Walter Tuvell | May 27, 2019 4:59:44 PM

And just clarification Walter:

It is not about music or MP3 and so forth. But, civil and criminal actions, like : defamation, violation of privacy, hacking computers and so forth....

In music, it is rather, infringement of copyrights. Then, the issue may be also, whether, was for commercial use ( the offense or infringement ) or just for private one. But it may vary. Those are general ones.


Posted by: El roam | May 26, 2019 5:17:17 PM

Thanks for your compliments Walter.Typically, one wouldn't record something , without actually publishing it later.The point is, that publishing, doesn't mean necessarily to the whole public ( social media and so forth... ) you can share it with one or two persons, and it may be sufficient as wrong doing, or offense and so forth. Although, greater is the dissemination, more severe it is or would be considered legally naturally as more severe.


Posted by: El roam | May 26, 2019 5:09:01 PM

El roam, thanks for the thought-provoking comments. We probably don't need to continue discussing in this forum, but for the record I'm not very clear about the distinction between "recording per se (with-or-without ever exposing it)" and "recording for ultimate-usage."

More explicitly: What's the real "bad act?" Making a recording in the first place (say, having an MP3 file on your personal/private disk)? Or, exposing/publishing that MP3 to others?

In other words: Is it the "MAKING" of the MP3 the bad act? Or is it the "PUBLISHING" it to others?

Cheers (as always, it's a pleasure talking to you).

Posted by: Walter Tuvell | May 26, 2019 4:46:07 PM

Walter Tuvell,

Lying and such, those are substantive issues,while the issues made by you and the ruling implicitly, were rather formal it seems. Formal that is to say, formally, how to distinguish between public space and private or hybrid one.

To lie and such, one may, in private, and in public notwithstanding the framework or definition of current space.


Posted by: El roam | May 25, 2019 2:03:11 PM

Typo: Should read "'intimate private conversation'."

Posted by: Walter Tuvell | May 25, 2019 1:53:04 PM

[Sorry about that double posting earlier, browser hiccup.]

Good points, El roam, but I'm not so sure about the "intimate private part" part. My premise was "public official conducting official business with member of public." Here's my concern: a lying public official (yes, it happens ☺). How does one hold them to task (a.k.a, "impeach their lies")?

Posted by: Walter Tuvell | May 25, 2019 1:51:30 PM

Walter Tuvell,

You are right to pose such question, the answer may vary, but although we can't precisely cover the whole scope, we can get more than some idea, while covering extreme cases of course. Extreme and conclusive.For example:

If you would record an arrest of one person, in plain view ( in the street for example ) then it may be legitimate, unless the police officer, is raising a legal and reasonable objection ( like public safety ) but as a rule, it is reasonable. Here I quote from the ruling ( subject of the post ):

With respect to "public space" and "government official," in its December 10 order the Court specifically adopted the language that the First Circuit employed in Glik. See, e.g., 655 F.3d at 82 ("The filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles."); id. at 83 ("Our recognition that the First Amendment protects the filming of government officials in public spaces accords with the decisions of numerous circuit and district courts."); id. at 84 ("Such peaceful recording of an arrest in a public space that does not interfere with the police officers' performance of their duties is not reasonably subject to limitation.") id. at 85 ("In summary, though not unqualified, a citizen's right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.")

End of quotation:

But taping the phone line or conversations therein, this is absolutely illegal of course. For, the line itself, is meant for intimate private conversation, this is not public place, as a place the public may access freely.


Posted by: El roam | May 25, 2019 12:25:40 PM

Question: What, exactly, is the scope of "public place" (which figures in the ruling, though not in this article)? For example, can one surreptitiously record a phone call with a public official doing their official duty?

After, any "public" person could phone the official, and the telephone lines are "public"/common carriers. This question can be distinguished from, say, a private dinner with a public official at a private residence.

Posted by: Walter Tuvell | May 25, 2019 12:09:25 PM

Question: What, exactly, is the scope of "public place" (which figures in the ruling, though not in this article)? For example, can one surreptitiously record a phone call with a public official doing their official duty?

After, any "public" person could phone the official, and the telephone lines are "public"/common carriers. This question can be distinguished from, say, a private dinner with a public official at a private residence.

Posted by: Walter Tuvell | May 25, 2019 12:05:44 PM

just correcting the end of my comment:

Instead of:

"Can't be implied discriminatingly"

Should be:

Must be implied indiscriminately

Apologizing ....

Posted by: El roam | May 23, 2019 10:44:19 PM

Interesting, but it should be noted, that the difference between both injunctions, lies also in the contempt issue, here I quote:

Although the practical effect of the two forms of relief is ordinarily the same, see Samuels v. Mackell, 401 U.S. 66, 73 (1971), a declaratory judgment is a "milder form of relief" because it is not coercive, i.e.,noncompliance will not result in contempt proceedings.....

End of quotation:

But, you do ignore again the issue of conduct(differentiated from parties).Here we have a case, of a remedy, that should be addressed to every police officer, and to act in accordance with the remedy given by the court. This should be implied upon a law enacted. How can It touch only one particularized party ? This is a law, which has general implication on the public. Police officers, must imply it, from now, on each relevant person, here I quote:

The Court declares Section 99 unconstitutional insofar as it prohibits the secret audio recording of government
officials, including law enforcement officers, performing their duties in public spaces. This prohibition is subject to reasonable time, place, and manner restrictions. The Court orders that this declaration be provided to every police officer and to all assistant district attorneys within 30 days.

While effectively, I quote:

"Moreover, the police retain discretion to impose reasonable restriction.... "

So, can't be otherwise. This is a law. General as such in its implication. The implication of it, should touch many parties ( many police officers while on their duty ). And they should exercise discretion in accordance. Can't be implied discriminatingly.


Posted by: El roam | May 23, 2019 10:33:24 PM

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