if the recording device is held out in plain view it's deemed constructive knowledge and it's really a matter of how far away the person is but i don't think the state courts have tested every variation of that but yes that's the bright line they've drilled between a recording device intercepting device in the language of the statute that is in plain view versus not in plain view now the statute as i mentioned has no concern with the reporting we have no quarrel about  in certain public circumstances there is a st amendment right to the record of certain government officials we have no quarrel with the whole damn quick as far as it goes as far as i just described but the district  massachusetts statute just records so interpret it quick to cover far more government officials and far more public situations than this chord appears to have held in correct the trouble with the district courts problems of the district courts decoration no is that we don't know exactly what situations we don't know exactly what government officials just records phrased as it is possible to frame would because that would cases are just fishable in the st place whether the nature of the claims and that they provide with the law around this right to record as it is its right to decree was limited just to traditional public forum would you think it without more definition around the public official being recorded police officers in traditional public fora doing public duties would that be right but you're right i still don't think that the level of concreteness that the law requires in truly confidential the police officer can control who would need to go sounds easy enough to hold the private and to use officer who meets in a public place with a confidential informant realizes that she's and so the police in that situation on the last stance right now are able to look around the room and say oh there's people passing by maybe we shouldn't have this conversation about your decrees are never that they should be even more careful well and i think your honor that  raises the point that we make our brief about the interest on both sides of the question while but there's no doubt a st amendment right to write about the government to gather information about the government  anybody who's talking in public also has rights of what they say they have the right not to speak they have the right to make intelligent choices about what they choose to say what they choose to do why why don't we wait until there is a case that in fact raises exactly that issue i e some bystander who says you know i'm not part of the police i'm not part of the apparatus and yet they've recorded me and they've recorded me you know will assume without my knowledge or reasonably imputed knowledge and decide the case then for the present time with that is not what is before us and that is not with what was before the district court so leave the general rule where it is and wait for the case that you were describing in our view here on earth that is our development of the law in this this in the context of appropriately concrete cases that confer appropriately tailored rules but where there are interests on all sides of this question that theory depending on the applications can be identified which are not of the kind that would raise your concern the reporting is in a public plan he said story in proper duties the reporting doesn't pick up any private speech or alternatively the private speaker speaking extremely loudly or in a way in which they have no conceivable private privacy expectation one can imagine many many many circumstances where this statue would stand in the way of such recording which is traditionally the type of thing that grounds a facial challenge because there is so many potentially unconstitutional applications you're saying because you can identify some constitutional applications but all of that must be done as applied but that seems subjection to analysis as a facial challenge to the extent that the claim reaches and so our view is that what the plaintiffs have to do to say in their claim here is to show  situation where there would be a mixture of constitutional unconstitutional applications and said you can proceed with what amounts to official challenge with it to go on constitutional  about applications that contemplated even in the facial challenge the question is whether there's a substantial amount of unconstitutional applications that's the whole reason why because of the st amendment interests involved we don't are our understanding is that there needs to be a plane with which it sweep and i don't doubt that that stats relative i guess our point here is that it doesn't require a ground you're giving for why there are legitimate has to do with the privacy expectation of the individual that it must be that one could easily have bought the size a substantial number of it which animate applications as much recording could occur in which no private party would be picked up or if a private party was picked up that private party would be speaking in a way in which they would not have an expectation of privacy bill and i think i'm glad that you bring up the expectation of privacy because that's we rest on our grief is the notion that people have an interest in knowing when they're being recorded so that they can make appropriate choices about how to conduct themselves it's not a far fetched interest matter  in order for there to be a bio in order for it to be permissible in other words open reporting counts as open recording even if it's done in a way in which there is no real reason to think that the people being recorded would enough to deem the person being recorded as having knowledge that they're being recorded plain so whom i'm certain plainview to home other words if i am at a remove holding up in plain due to others it's hard to say i'm doing it secretly but to the people i'm filming for engaged inside a traffic stop they may have no knowledge that i'm recording them and as i understand it nothing in the statute requires them to have knowledge in order for me to be able to record as long as some other people could see how it was recorded but the way the state lost developed on this i think it's reasonable to interpret the state law as requiring the recording device to be in the plain view of the person being recorded because that's whose interests and that's whose rights the legislature  that but then that diminishes the interest that you just asserted fairly dramatically the interest is in really having the ability to know when you're being recorded certainly if the police in politician or any other number of public officials the sanitation worker the social worker the lug my berry and the teacher is saying something particularly sensitive and wants to look around and see if they're being recorded the massachusetts statute is tailored to ensure that what you see that thank you thank you you mockery of the face of the most effective form of news gathering undercover journalism by denying system so right to build the bottoms of public and to be able to gather information in the most effective way possible that is secret why do you record it what do you straight with the idea that everybody in this courtroom right now in the personal right to record these proceedings yes that's your position yes you have a narrower position here and i think it's helpful to examine where where section ninety nine massachusetts rise in comparison to every other state other states have done the hard work to balance two sides of the constitutional question so there's an interest certainly as the supreme court recognize arises california has statutory safeguards for the thirty eight dollars other states simply allow for recording to occur in a relatively unregulated manner but it's massachusetts better under it's a lazy approach to this they didn't balance or give proper weight to the right of citizens of political activists and journalists to be able to acquire information our on the streets and that's the problem here because it leads to a law that's prophylactic and clumsy i'm just you just use the phrase out o n the street yes so that girl ricky and girl ed yes both encompass that yes but then some of the examples you give are a person going into a private car dealership so i'm just trying to get a sense of what do you mean by public place what reservations are there on him that we streets is very different than a building whether government owned or not because of the nontraditional proceedings privately you would say don't apply just in public forum usually we would say if there's any reasonable basis for the restriction under the activity and it's not viewpoint based it's legitimate what do you want us to get so to everybody in the for it in massachusetts is free to do that it's free to safeguard the privacy of it last resort to some girl ricky we said that with respect to the traffic stop on the street which was not a traditional public footnote saying we had no occasion to say whether the wiretapping statute there was such a reason restriction was everybody had agreed it didn't apply right as the wiretapping statute here not a reasonable restriction because it does no while there is a legitimate government of interest in protecting conversational privacy and eleven states have worked out tests to do that on the other end of the constitutional question has a right to be able to acquire information in entirely capable but government officials and individuals are able to safeguard their own privacy if they have a confidential conversation or an informant were able to meet in a private place where we are now alleging the right to be able to invade doctor do you think that given the argument you've made to this to create you should be narrowed in so far as it applies to one of the pies to marry such and why not why shouldn't there be an exclusion for circumstances in which the  party had an expectation of privacy which is the st amendment interest in reporting even in that circumstance the believe person in the interest to sue is the same as articulated before to be able to provide information to about what the problem is that my time is up pressure for the questions thank you good morning honor stresser osman on behalf of mr martin and mr pratt's regardless of how this court resolves the broader claims that project their house and their suit turney has been speaking about it should have thrown the much narrower relief than mr martin and mr president seek and mr martin the surprise focus exclusively on police officers who unlike other government officials are armed at the state and have the authority to take people into custody and to in certain instances use force against individuals and recognizing that great power this court and greg held that the st amendment applied to the recording of police officers performing their duties in public written to permit the recording secretly of police officer interactions but in the others would that make it content  result of individuals exercise their st amendment right and it's good recognize that includes the right to record why isn't your answer the question that what police officers do cover is such a  territory of interactions and interventions that it could not be regarded as content based because the the the non content extraordinarily br content based in it in its paradigm form refers to you know unpopular opinions or specific subject but you could not apply that and i think as a result what the court again has recognized is that there is that protected st amendment right to record police officers as a result that they are playing in our society  extent that there are any potential significant government interests that we've already heard here today indicates and supports the argument from that mr martin mr pratt is are making which is that the complete prohibition not as i understand have a carve out for instances in which the conversation i'm in for all day private person who had a expectation of privacy as to the conversation that's crac what is the reason why there shouldn't be such a carve out but i think as a reason our papers are i think there are some serious questions about whether there is a significant government interest in protecting the conversation voluntary conversations that individuals are having or with where we think your shot at a police officer but critical in this quarter doesn't need to answer that question because even if there are such interests this complete prohibition is not narrow tailored to such instances and what the supreme court is trying to see was the decree that you've got though means that even reporting of circumstances in which say a victim of a sexual crime goes to the police officer to tell the officer what just happened that could be secretly recorded and then distributed under this to create that is correct and you know i'm asking you is there a reason why the decree needs to encompass even that circumstance were could do you have a problem with the degree where narrowed so that is excluded circumstances in which the person speaking had an expectation of privacy and if you didn't you may have to try to figure out what would be the reason because you could imagine circumstances in which this  that we don't know whether the legislature even contemplated any of those particular circumstances and that's not a knock against the legislature the statute was passed before individuals were carrying cell phones and before this court's going to search and but following what the supreme court  because of how sweeping the restriction this but if the decree one of the place would be become an outlier with respect to how effectively naked we are from protection against secret recording clear that it's a little finer point on it than that it's not privacy in the sense that you want to have to listen to me because that's plain we don't with section ninety nine dollars does that it's rather privacy in the specific sense that if you're going to race in chile or to record me i ought to be able to know that you're doing it so that i can make choices appropriately about what i say and what i do i also wanted to secondly address  you ahead mention some hypotheticals about this court room and some other public spaces and maybe public forums on who we would direct the court's attention to and that is the breadth of spaces that constitute public for and the breadth of things that a government official might be called upon to do in those spaces we've talked a lot about police officers that also include say a teacher speaking to a parent waiting outside of the school  that under a nontraditional public form analysis if that was the right thing to do was you look at whether the restriction is reasonable to the forum the needs of the forum and that's usually tailored consideration as to the forum but there's just no them review is this restriction appropriate to the forehead issue because there was no consideration of whether it was instead it was based on a different theory as to why the restriction was proper homework the legislature did here was passed down  rule of general applicability it's not content it doesn't make distinctions based on content doesn't extinctions based on place that's right and i think the question before this court is whether if it reaches the merits as a general broad matter legislature outside of its rights to hang the hat of massachusetts public policy on this notion that people ought to know when they're being when they're being recorded the rd point i want to make briefly  meetings that is no consent just required from parties that conversation but you have to be holding it out in the open the yardstick the massachusetts shows matter of policy is served this is not reasonable