This week the Supreme Judicial Court in Massachusetts affirmed a trial court’s dismissal of Mayor Joseph Curtatone’s lawsuit against Barstool Sports, Inc.
The spat between the parties began in 2019 when the virtue-signaling mayor publicly criticized the Boston Bruins for distributing Barstool Sports promotional towels at their hockey games.
Curtatone sounded off on in social media page,
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. Our sports teams &
local sports fans need to push back to stress that’s not for
In response, Barstool Sports commentator Kirk Minihane attempted to speak with Mayor Curtatone about his social media remarks. After the mayor refused this request, Minihane called again and impersonated a reporter from the Boston Globe. This time Mayor Curtatone took the call.
Minihane asked permission to record the call and the mayor agreed. The conversation was then recorded and posted on Barstool’s blog:
Curtatone later discovered that the conversation was a trick and filed a lawsuit against Barstool Sports claiming that the company violated the Massachusetts wiretap act, M.G.L. c. 272, section 99.
The trial court dismissed the mayor’s complaint stating that he failed “to state a claim upon which relief could be granted.” The decision was appealed directly to the Supreme Judicial Court.
The Court affirmed the dismissal of the case. According to the opinion, Massachusetts’ wiretap act prohibits “willful…interception of any wire or oral communication.”
The Court then discussed the meaning of “interception” as it relates to the statute:
Interception, as defined in the act, “means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication.” G. L. c. 272, § 99 B 4.
The call between Curtatone and Barstool was neither “intercepted” nor “secretly record[ed]” according to the Court. In fact, at the start of the call, Minihane expressly told Mayor Curtatone that he was recording the conversation and received Curtatone’s permission to do so. The fact that Minihane lied about his identity was irrelevant. Thus, the court concluded,
Because Minihane did not secretly record his conversation with the plaintiff, the challenged recording does not fall within the statutory definition of an “interception” within the meaning of the Commonwealth’s wiretap act. The plaintiff thus has not made factual assertions sufficient to state a cause of action upon which relief can be granted.