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DEL GALLO: Mother Jones’ Romney recording was illegal

Even politicians have privacy rights

- The Washington Times - Friday, September 28, 2012

The recent Mother Jones release of a secretly recorded tape of Mitt Romney at a relatively small private fundraiser at someone's house has been the subject of widespread commentary. Scarcely a word has been written about the serious invasion of privacy and criminal activity on the part not only of the person who secretly recorded the conversation, but of Mother Jones, the media and YouTube for using it.

In order to safeguard the privacy of innocent persons, Florida outlawed the secret recording of "oral communications." Perhaps one argument to justify the secret recording of Mr. Romney and the guest is that under Florida law, an "oral communication" means "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception." The circumstances must reasonably justify such an expectation. Furthermore, an "oral communication" does not mean "any public oral communication uttered at a public meeting."

But Mr. Romney and his guests were not at a public meeting -- they were at a private event in a private home. They had no reason to expect that they were being recorded (i.e., "intercepted"). Their expectation of privacy was reasonable. Mr. Romney's conversation with the guest appears to have been an "oral communication" under Florida law. Moreover, wait staff overhearing the conversation does not constitute an "interception" by a device vitiating the reasonable expectation of privacy. Those running for public office have a reasonable expectation of privacy when confiding their private thoughts to their close supporters in small and intimate circumstances, such as speaking to a group of about 100 people at a private residence, as Mr. Romney did in this case.

The next question is whether Mother Jones, the media and YouTube are breaking the law by using the illegally recorded conversation. Under Florida law, it is illegal to disclose to any other person (or otherwise use) the contents of an illegally recorded conversation. It does not matter that Mother Jones did not obtain the information illegally itself or solicit the illegal activity. Nor does it matter that Mother Jones, YouTube and others in the media did not understand the law.

Certainly, the press has First Amendment rights. A 1977 Florida case flatly ruled when considering the statute that "First Amendment rights do not include a constitutional right to [engage in] news gathering activities when the legislature has statutorily recognized the private rights of individuals."

The 2001 U.S. Supreme Court case Bartnicki et al. v. Vopper has direct bearing on this argument. Someone violated the federal wiretapping laws by secretly recording a conversation between members of a teachers union during a labor dispute with the school board. Unlike Mr. Romney's private thoughts, statements were made that the members of the teachers union should go to the homes of school board members and "blow off their front porches." The federal wiretapping statute, like the Florida statute, also makes it illegal for others to use a secretly recorded conversation. The conversation was replayed on radio stations, and portions of the conversation were published in newspapers. Three justices in the dissent ruled that the media cannot under any circumstance broadcast or republish illegally recorded conversations, even if innocently acquired and even if it is a legitimate public concern. It is true that six of the nine justices cobbled a majority opinion by ruling that under the circumstances presented, there was a First Amendment right to distribute the contents of the illegal taping. But two of those six only allowed the redistribution because threats to physical safety were involved. Only a minority of four of the justices ruled that the media always have a right to redistribute material so long as they did not illegally procure it. A majority of judges -- five of the nine -- ruled that when there are no threats to commit a crime or other illegal activities (which would clearly cover Mr. Romney's fundraiser), the media has no right to use the illegally recorded conversation.

Even public persons are entitled to express their thoughts in a private conversation kept just that way -- private. This does not simply protect the civil rights of the policymaker -- it makes for better policy. Vigorous private discussion where ideas may be vetted without fear of public disclosure promotes better government.

Rinaldo Del Gallo III is a civil rights attorney.

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