David Portnoy, founder of Barstool Sports, speaks during a radio broadcast prior to Super Bowl LIV on January 30, 2020 in Miami Beach, Florida.
The Massachusetts Supreme Judicial Court has upheld the dismissal of Somerville Mayor Joe Curtatone’s lawsuit against podcaster Kirk Minihane and Barstool Sports, after Minihane recorded and published an interview with Curtatone in which he pretended to be a reporter from the Boston Globe.
Curtatone’s lawsuit alleged a single count of violating Massachusetts’ wiretapping statute, which requires consent from all parties before a communication can be recorded. Curtatone argued that he never truly consented to being recorded, since Minihane was pretending to be Pulitzer Prize-winning journalist Kevin Cullen, and that “actual consent” requires that Curtatone knew Minihane’s true identity.
Curtatone also argued, somewhat circuitously, that since he believed that he was talking to Cullen, Minihane illegally “intercepted” the communication as a third party, impermissibly listening in on a conversation between Curtatone and Cullen.
The SJC disagreed, saying that the definition of a prohibited “interception” is one that is both secretly made and without prior authority to all parties. In this case, the SJC said, it was clear that Curtatone knew he was being recorded and consented to it.
“[I]t is readily apparent that the plaintiff’s arguments are foreclosed by the plain meaning of the act,” the SJC said in its ruling. “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 identify was asserted is irrelevant,” the court continued. “Rather, it is the act of hearing or recording itself that must be concealed to fall within the prohibition against ‘interception’ within the act.”
In other words, the court appears to be saying, it didn’t matter that Curtatone didn’t know that Minihane wasn’t who he said he was; what matters is that Curtatone knew he was being recorded, and agreed to it.
Minihane launched the gag after a public back-and-forth between Curtatone and Barstool president David Portnoy. Curtatone had criticized the Boston Bruins hockey team for its partnership with Barstool (Curtatone would later describe Barstool president David Portnoy as someone who “enjoys a reputation for publishing crass content on Barstool,” which is putting it mildly). Portnoy struck back, accusing Curtatone of being a criminal, and saying his family engaged in rape, extortion, stabbing, and arson.
Minihane decided to try to interview Curtatone, but said that, as himself, he couldn’t get a response from the mayor (an allegation Curtatone disputes, noting in his complaint that he “never received any request from Minihane for an interview”). Minihane decided to try again – this time, posing as Cullen.
Curtatone granted Minihane-as-Cullen’s request. They spoke for about 20 minutes and discussed the Barstool/Bruins controversy. Minihane, who apparently disguised his voice as he spoke with Curtatone, posted the interview to Barstool on June 6, 2019, and Curtatone sued about 10 days later. Minihane and Barstool moved to dismiss for failure to state a claim, and won; Curtatone appealed.
Both the ACLU and the Reporters Committee for Freedom of the Press had filed an amicus brief in support of Barstool’s argument on appeal.
As expected, Minihane celebrated the decision on Twitter Monday, saying that he knew he would win because he’s a “fighter.”
Portnoy took the legal victory as an opportunity to take another shot at Curtatone.
“Let’s not forget that when Kirk asked him why he hated Barstool so much he literally didn’t have any examples,” Portnoy wrote, adding that Curtatone was a “classic politician.”
Curtatone, for his part, accepted the court’s decision.
“Obviously when you have a case of first impression go before the Supreme Judicial Court you’d prefer to win, but I accept the Court’s decision and thank the justices for giving our case a hearing,” Curtatone said in a statement to Boston.com.
Read the SJC decision, below.
[Image via Cliff Hawkins/Getty Images]