In early October, I published a story about the questions I’m most often asked as a media law scholar and practicing media lawyer—and I said that whether I’m speaking generally to a non-client or giving specific legal advice to a client, I’ve noticed that the questions fall into three categories:
Can I use that?
Can I do that?
Can I say that?
That earlier post tackled Can I use that? questions by exploring various copyright issues. This post picks up where that one left off, with Can I do that? questions—focusing on whether, generally, it’s lawful for journalists to record police activity in public, to enter private property to gather news, to record a conversation without a party’s consent, and to record a person where he or she has a reasonable expectation of privacy.
(Oh, as I said in my last post, keep in mind that I’m a lawyer, not your lawyer, and these comments shouldn’t be construed as legal advice.)
Recording police activity in public
Lots of journalists have asked me about recording police activity since the Occupy Wall Street movement began to generate headlines in 2011. The short answer is: Most of the time, you can do that.
And this is a good time again to review the issue—because just last week, a federal court ruled that a police chief violated a man’s First Amendment rights by threatening to arrest him if he recorded the chief after a city council meeting.
The chief was uniformed and appeared at the meeting in his capacity as chief. When the meeting ended, he confronted a local citizen outside the council chamber and told the man that if he recorded their conversation—which was about the meeting—the chief would arrest him. On those facts, the Northern District of California ruled that “it is clear [the chief] violated [the citizen’s] First Amendment rights.” The court reasoned:
It has been clear in this circuit since at least 1995 that the First Amendment protects a ‘right to film matters of public interest.’ In other words, ‘the First Amendment protects the filming of government officials in public spaces.’ Restrictions on recording police officers in public places ‘interfere … with the gathering and dissemination of information about government officials performing their duties in public.’
That’s consistent with other cases in this area. In 2012, the US Department of Justice released a letter asserting that the public has a First Amendment right to record police activity. In 2013, the DOJ urged a federal court to say the same. In 2011 and 2014, federal courts issued strong opinions to that effect. And, in 2014 in Ferguson, Missouri, local law enforcement agencies signed an agreement acknowledging that “the media and members of the public have a right to record public events” in the absence of extenuating circumstances.
In a 2011 opinion, the First Circuit outlined the reasons that citizens are entitled to record public police activity: Doing so promotes the discussion of public affairs and “aids in the uncovering of abuses,” and the police “are expected to endure significant burdens caused by citizens’ exercise of their First Amendment rights.”
That said, the right to record isn’t absolute. It’s generally subject to time, place, and manner restrictions—e.g., an officer could close an accident scene for safety reasons, restricting the public’s ability to record there.
Entering private property to gather news
Too many journalists seem to believe that the First Amendment immunizes them from liability for general crimes they commit in the course of newsgathering. That’s not the case—and trespass is a classic example.
Entering private property can result in a civil trespass lawsuit or in criminal charges. To trespass means you’ve entered the property without consent, or you’ve refused to leave when asked. In most states, it’s fine to approach a person’s home or business to ask the owner or occupant whether she will, for example, agree to be interviewed. But once she refuses or asks you to leave, remaining there is a trespass. You also can’t enter private property simply because you want to gather news there (e.g., to capture photos or video).
A variant I’m sometimes asked about: What if I’m a journalist riding along with an emergency-response crew? Am I allowed to enter private property with the crew? Not necessarily. In the 1986 case Miller v. National Broadcasting Co., a woman successfully sued a television station whose reporters entered her home with paramedics, without her consent. The reporters filmed in the home and said they had the right to join the medics there to gather news. The court disagreed and said the press had no such right and that emergency personnel could not grant consent to enter private property—only the owner or occupant has that authority.
Recording without a person’s consent
It’s usually investigative journalists who ask these questions. They want to record phone conversations to which they are a party, for example, or record in-person communications between other people—stuff like that.
A range of federal and state statutes spell out when it’s unlawful to record or eavesdrop on a conversation. This area is complicated and the rules are inconsistent from state to state, so I’m going to oversimplify a bit.
First, it’s unlawful for journalists to intercept or record phone conversations among other people. That principle also applies to in-person communications that enjoy a reasonable expectation of privacy (e.g., two people are whispering in an office with the door closed, and you’re using a sound-amplifying device to pick up their conversation).
Now, what if you’re a party to the conversation, either by phone or in person? Then can you record it? The federal wiretap law uses a one-party consent rule, which means any one party to a conversation can consent to its recording. The person doing the recording can be the person consenting, and she doesn’t have to notify the other parties.
However, in addition to the federal wiretap law, every state has its own. Some use a one-party consent rule, but others use an all-party consent rule, which means you must obtain the consent of all parties to the conversation before recording it. And it’s not always clear which law applies. As another media lawyer once put it: If a person lives in Virginia but has a DC cell number and is on vacation in California, and she receives a call from a guy in Massachusetts and wants to record their conversation, which law applies? If there’s a conflict, the most prudent thing to do is comply with the most restrictive rule.
Finally, there’s intrusion—the civil claim that allows a person to recover damages for an offensive physical, electronic, or mechanical invasion of her seclusion. Put differently, if a person is in a place where she has a reasonable expectation of privacy, and that privacy is violated in an offensive manner, she could sue the violator for intrusion (e.g., using a telephoto lens to photograph a woman sunbathing topless on a private patio that’s far from a public area and generally concealed).
Keep in mind that there’s no reasonable expectation of privacy in public places, such as streets, parks, and large public gatherings. Journalists are free there to observe and record what they can see and hear. The issue is trickier, though, when people are in quasi-public places, such as shops or restaurants. Would there be a reasonable expectation of privacy at a highly exclusive restaurant where you’re seated in a private booth? That could go either way.
In individual cases, whether there’s a reasonable expectation of privacy will depend on multiple factors, including (1) the degree of control the complaining person has over the space, (2) whether other people can freely or easily obtain access to it, and (3) whether the complaining person has indicated that he or she expects privacy there. Courts use those factors to confront the reality that many of us, as Greta Garbo once said, don’t want to be alone—but very much want to be left alone.
In the final installment of this series, I’ll address Can I say that? questions, focusing on libel law and news reports that might harm a person’s reputation.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.