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Kirk Minihane may be a liar working for a misogynist, but he didn't violate state law when he taped an interview with Somerville's mayor pretending to be a Globe columnist, court rules

The Supreme Judicial Court today dismissed Somerville Mayor Joe Curtatone's lawsuit against a New York blog and one of its writers under the state wiretap law, because the guy asked if he could record a phone "interview" with Curtatone, and the wiretap law only bars "secretly" recorded conversations.

Curtatone had argued he never would have talked with Kirk Minihane if he had known the guy on the other end of the phone was Minihane because Minihane works for Barstool Sports, whose owner, failed one-time Boston mayoral candidate David Portnoy, had called Curtatone and his family a bunch of rapists, arsonists and extortionists after Curtatone had criticized the Bruins for handing out Barstool towels before a game. Because Minihane concealed his true identity, Curtatone argued, the recording was, in fact, done "secretly" because his identity was a secret.

But the state's highest court said the key thing under the wiretap law is not whether Minihane was lying about who he was when he called Curtatone pretending to be Globe columnist Kevin Cullen, but whether Curtatone knew he was being recorded. And since "Cullen" asked out the outset whether he could record the conversation and Curtatone agreed, it was, legally, match over for the mayor, the court ruled.

According to the court's summary of the case:

Minihane interviewed Curtatone via telephone on June 6, 2019. Minihane altered his normal speaking voice to sound like Cullen and maintained throughout the interview that he was Cullen. At the beginning of the call, Minihane asked Curtatone for his consent to "record" the interview,and Curtatone consented. Minihane audio-video recorded his side of the conversation. Barstool Sports then posted the recording on its blog.

The court noted that the legislature did not define "secretly" in the law, so it had to turn to sources such as Merriam-Webster's Collegiate Dictionary (11th edition, 2020) and Black's Law Dictionary (11th edition, 2019), which indicate "that the act of hearing or recording is that which must be done secretly in order for the interception to fall within the prohibited activity."

The court concluded that:

Minihane did not secretly hear or record the challenged communication within the meaning of the act, because the plaintiff knew throughout the call that his words were being heard and recorded. 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. See Jackson, 370 Mass. at 507-508 (telephone calls permissibly recorded under act where, contrary to defendant's beliefs, victim's brother made recordings, rather than police). See also Commonwealth v. Hyde, 434 Mass. 594, 603-605(2001) (countenancing no violation of act where recording party simply informs those involved of intention to tape record encounter, or even holds tape recorder in plain sight, regardless of identification). The recording at issue was not made secretly and, therefore, there was no interception under the act.

PDF icon Complete ruling94.84 KB

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I hope people remember this ruling before they wrongly claim that Massachusetts is a two-party consent state.

If it were, I think this case wouldn't have been dismissed. There is a good argument that the lie voided the consent.

But because our statute is about "secret" recordings, the SJC was absolutely right that the recording was done openly and so the case must be dismissed.

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Massachusetts is a two-party consent state he consented to be recorded, that's it. If I'm reading correctly the fact that he was lied doesn't matter he agreed to the recording.

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There is no law about two-party consent.

The only law is about "secret" recordings.

This case shows the difference between consent and secret. (As do other cases about sexual interactions predicated on lies, etc.)

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live to tape.

one of kirks lawyers had toilet paper on his shoe.

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Like the fact it took me all of about 8 minutes to crucify Kirk when he tried to break Joe's balls in front of Somerville City Hall.

Only Kirk and his crew of Trump loving misfit incels never mention that! If only my pal Mike never sent me after Kirk...

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Are we back in 2009?

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Racist. Misgynist. Loser. You name it, the Shit President is it.

Big Stoolie are ya?

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I shook my head vigorously at Prez's union-busting comments from a couple of years ago (especially because they flew directly in the face of "By the common man, for the common man.")

But I'll forever appreciate Prez because he had a message board on his site in 2006, which helped me to make friends when I was still relatively new to Boston.

He's hardly a loser, I'll need an example of racism, and he might have published misogynistic content previously, but I've always known him (at least when he was visible at Boston events) to treat women with the utmost kindness and respect.

I cite his longstanding practice of disallowing comments on Local Smokeshow posts: You can look at the pretty girl, but she's your neighbor, and you can't say salacious things about her.

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Why am I not surprised that you grovel at the feet of a oaf like Portnoy? The fake townie rich kid from Swampscott that likes to get his knob polished by scumbags like Minihane and Tucker Carlson.

Grow up. Local Smokeshow isn't misogynist, kid?

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For aid in social development is not "groveling."

It's my understanding that women who appear in LSSOTD do so after having given permission. Your capacity for speaking out against injustice is appreciated, and best reserved for victims. These women are not victims.

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How/why did this question ever get as far as the SJC? I mean... yeah, Minihane is a tool, but seriously?
This sounds like a point that the lower court judge, Curtatone's lawyer, a law student, the stenographer, the security guard at the courthouse, my Uber driver, Mike Tyson's dental hygienist, the late Bo Obama, the old guy who used to call WEEI from the Foxy Lady, Mark Wahlberg, and Shelby Scott all would have needed less than two seconds to tell Curtatone "no sale".

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The court had to do some homework to establish their ruling (how the word "secret" was intended to be defined in the law because the law wasn't explicitly written) so perhaps there wasn't any legal precedent here for these circumstances and the SJC felt it necessary to weigh in.

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The day that he is denied a platform, the world will be a better place.

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actually happen!

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