united states project

Media escapes with scratches in undercover-video fight with Planned Parenthood

October 4, 2016

California Gov. Jerry Brown signed a bill last week that increases penalties for certain violations of the state’s laws against recording private conversations, over the objections of media and civil liberties groups. It’s a win for Planned Parenthood, which pushed Assembly Bill 1671 as a way to crack down on undercover recordings like the ones made of its executives by anti-abortion activists last year. But the signing isn’t an outright defeat for the media; after negotiations between legislators, Planned Parenthood, media organizations, and other interest groups, the bill was amended late in the summer legislative session to remove its threats to press freedom.

What remains is a rather modest toughening of California’s two-party consent law. As in 11 other states, it is illegal in California to record a private conversation, in person or on the phone, without the consent of all parties to the conversation. AB 1671 adds an additional offense when someone who illegally records a conversation also “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet Web sites and social media, or for any purpose, the contents of a confidential communication with a health care provider.”

The additional crime is punishable by a $2,500 fine and a year in jail, per violation, the same penalty as the underlying crime of making the illegal recording. There are exemptions for people who record conversations to obtain evidence of certain crimes, including domestic violence, sexual assault, human trafficking, blackmail, extortion, and violent felonies.

The law applies only to health care providers because it was written, by Democratic Assemblyman Jimmy Gomez of Los Angeles, at the behest of Planned Parenthood Affiliates of California. In its original form, the bill sought to criminalize the distribution of illegally recorded conversations, even if the distributor was not the person who made the recording.

That presented clear Constitutional concerns, as the US Supreme Court held in 2001, in Bartnicki v. Vopper, that the First Amendment protects the publication of illegally recorded material, as long as the publisher did not participate in the illegal recording. The Senate Public Safety Committee agreed, concluding that the bill, as it was written when it first reached the Senate in June, “appears as if it would apply to a media organization that receives a recording … and would therefore face Constitutional challenges.”

The California Newspaper Publishers Association made defeating AB 1671 one of its top legislative priorities, and television and radio broadcasters also lined up against it, along with the ACLU and the Electronic Frontier Foundation. While they didn’t stop the bill, they did kill the potential for a news organization to be prosecuted for publishing undercover videos.

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“We really looked to the Bartnicki case,” said Nikki Moore, legal counsel for the CNPA. “The court made it clear that if the media does not participate in the illegal recording, they can’t be held liable for distributing it.”

The CNPA kept an official stance of  “no position,” but it stopped fighting the bill. Some members of the group, Moore said, remained opposed because they were worried the law will dissuade whistleblowers.

Brown’s signature was a bit surprising, since he has been generally opposed to laws that increase criminal sentences, in light of California’s prison overcrowding. But AB 1671 is so narrowly tailored–and prosecutions of the two-party consent law are already so rare–that the new law appears very unlikely to send many people to prison.

Still, Brown is pro-choice, as are the large majority of California legislators. That made AB 1671 an easy sell in Sacramento, and the amendments that remove media liability are likely the best outcome newspaper publishers and other media figures could hope for.


Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.