THE SUPREME JUDICIAL COURT on Monday rejected Somerville Mayor Joe Curtatone’s argument that a Barstool Sports reporter violated the law when the reporter recorded an interview with Curtatone while lying about his identity.  

In 2019, amid a public dispute between the progressive mayor and the crass sports blog, Barstool Sports host Kirk Minihane requested an interview with Curtatone and was turned down. Minihane then requested an interview again, falsely identifying himself as Boston Globe columnist Kevin Cullen. Curtatone agreed to the interview. 

On June 6, 2019, Minihane interviewed Curtatone, altering his voice to sound like Cullen. At the beginning of the call, Minihane asked permission to record the interview, which Curtatone granted. Minihane recorded the interview and posted it on the Barstool Sports blog. 

Massachusetts law requires both parties to consent to an audio recording. Secret recordings are illegal. Curtatone sued Minihane, arguing that he did not consent to the recording since he believed that he was talking to Cullen, not Minihane. He says Minihane “secretly” recorded the conversation because his identity was a secret.   

A Superior Court judge dismissed the case. The SJC, in a unanimous 11-page decision written by Justice Frank Gaziano, agreed with that dismissal. The SJC ruled that the call was not recorded secretly since Curtatone gave permission for the recording — regardless of whether he know who he was speaking to. 

“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 SJC concluded. “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.” 

While Curtatone tried to claim that Minihane violated his right to privacy, the court said as a big city mayor who believed he was speaking on the record to a newspaper reporter, “the Commonwealth’s interest in protecting his privacy is significantly limited.”