"The call on the trial floor was that there was no interception. After further review, the ruling of the court stands." This encapsulates the recent decision of the Supreme Judicial Court of Massachusetts, which also marked the culmination of a longtime dispute between Barstool Sports, Inc. ("Barstool") and Joseph Curtatone, the mayor of Somerville, Massachusetts. (Curtatone v. Barstool Sports, Inc., No. SJC-13027 (Mass. June 14, 2021)). The case centered around Mayor Curtatone's allegation that Kirk Minihane ("Minihane"), a Barstool employee, and Barstool itself, violated the Massachusetts wiretap act (Mass. General Laws c.272 § 99) by illegally intercepting Curtatone's communications when Minihane conducted a recorded interview with the Mayor under an assumed name.  The court handed down its decision in mid-June, but the disagreement started years before.

Barstool Sports is a sports and pop culture media company originally founded in 2003 as a free weekly newspaper, but which soon grew into a well-known brand with a presence on the web, podcasts and in streaming video.  As the Massachusetts Supreme Judicial Court noted, it has a "reputation for publishing crass content." In 2019 a Boston newspaper published an article about Barstool and days later Mayor Curtatone chimed in with critical statements about the media company.  Barstool responded with unkind words about Mayor Curtatone. Thus, the rivalry between Curtatone and Barstool was born.

A few days after the parties' online spat, in early June 2019, Minihane reached out to Mayor Curtatone with a request for an interview. This long shot attempt by Minihane was rejected immediately by Curtatone. On June 5, 2019, Minihane again reached out to the City of Somerville's Public Information Officer, but this time falsely identifying himself as a reporter for a major Boston newspaper requesting to interview the Mayor. This attempt proved successful, and Minihane, posing as a major newspaper reporter, conducted an interview with Mayor Curtatone on June 6, 2019. Before conducting the interview, but still posing as a newspaper reporter, Minihane received permission from Mayor Curtatone to record the conversation (and later posted it on Barstool's website). However, Mayor Curtatone remained unaware that the interviewer was actually Minihane.  Shortly after the interview hit Barstool's website, Mayor Curtatone brought suit against Minihane and Barstool, alleging that they had violated the Massachusetts wiretap act.

In Massachusetts, it is unlawful to willfully "intercept" any wire or oral communication, absent an exception; "interception," as defined by the wiretap 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." Mass. General Laws c.272 § 99 B 4. The state wiretap act provides a cause of action to any aggrieved person whose oral or wire communications were "intercepted, disclosed or used…." Under Massachusetts precedent, to be successful in his claim against Minihane and Barstool, the court stated that Curtatone had to prove: (1) that the interception was "secretly" made; and (2) without prior authority by all parties. As noted by the court, it first considers whether the alleged "interception" was actually made in secret; if it determines that the conversation was not secret, then such recording does not constitute an "interception" within the meaning of the statute and it will not look to the second part of the test.

Mayor Curtatone made two arguments in support of his position. He first contended that the wiretap act requires the parties to a recorded conversation to give what he referred to as "actual consent," which he argued was impossible to give without knowing the true identity of the interviewer. Second, Mayor Curtatone argued that Minihane secretly heard and recorded the conversation because, from the Mayor's point of view, Minihane was hearing and recording a conversation between Curtatone and a newspaper reporter. In other words, Curtatone argued that because he thought he was speaking to a specific newspaper reporter, the conversation was secret to anyone other than Curtatone and the reporter Curtatone thought was conducting the interview.

On the other side of the ball, Minihane and Barstool argued that the conversation was not recorded in secret. According to Barstool and Minihane, it would be impossible for somebody who is in fact a party to the conversation to be listening to it in "secret," regardless of whether that person is lying about their identity. Further, Barstool argued that Curtatone's consent to be recorded foreclosed any argument that the recording was made in secret.

On January 15, 2020, a Massachusetts Superior Court granted Barstool and Minihane's motion to dismiss, finding that Mayor Curtatone had actual knowledge of the recording of the telephone call and thus, the call was neither secret nor an "interception" under the state wiretap act.

On appeal, the Massachusetts Supreme Judicial Court ultimately agreed with the lower court that the conversation was not illegally intercepted.  In the court's reasoning, Curtatone's agreement to be recorded doomed the wiretap act claim, even given the misleading nature of the interview. As the high court explained: "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." Because of this, the court never considered the issue of whether Curtatone authorized Minihane to listen to the conversation.

Curtatone, unfortunately for him, found himself playing a game that he had not prepared for – the dispute itself, particularly the dismissal of claims, merely produced more content for Barstool to post on its media properties. Mayor Curtatone, however, would likely prefer another event like this not to happen to him; perhaps he could suggest that all of his future interviews be conducted over FaceTime.