Assembly Bill 1671, as amended May 18, could deter news organizations from publishing or broadcasting excerpts of surreptitious recordings made by others of conversations with medical professionals showing the latter to be engaging in practices that were both illegal and dangerous.

The bill, which has passed the Assembly and awaits hearings in the Senate, was sponsored by Common Cause after an anti-abortion group released secretly shot video of its own operatives, posing as potential buyers of fetal tissue, meeting with officials of abortion clinics.   The “sting” videos had been edited to create the false impression that the clinics were marketing tissue from aborted fetuses for profit, and the resulting furor became an issue in the Republican presidential primary and has led to calls in Congress for ending federal funding for Common Cause,

AB 671’s First Amendment problem is that it not only criminalizes the public release of unlawfully recorded confidential conversations with medical professionals by those who recorded them. It also makes a crime, as “aiding and abetting,” of the release of such recordings or their content by journalists who may suspect their unlawful creation but had no role in it, even if the conversations disclosed matters of genuine public concern.  That result would be plainly unconstitutional.

The U.S. Supreme Court held, in Bartnicki v. Vopper, 532 U.S. 514 (2000) that under the First Amendment, a radio commentator could not be held civilly liable under either state or federal laws for broadcasting a tape recording of an unlawfully intercepted cell phone conversation between local teachers’ union representatives arguably threatening violence against members of a school board with which the union was negotiating for a raise. The commentator did not know who made the recording, but knew whose voices it captured, knew it was provided to him by the head of a local taxpayer group, and had reason to know it had been unlawfully recorded.

Under such circumstances, the court concluded, the public’s interest in learning the intensity of the union officials’ frustration with the negotiation standoff outweighed any privacy right the officials could claim for their conversation, which after all dealt with a matter of undisputed public concern.

This rationale was best expressed in the concurring opinion of Justice Steven Breyer,

In finding a constitutional privilege to publish unlawfully intercepted conversations of the kind here at issue, the Court does not create a "public interest" exception that swallows up the statutes' privacy-protecting general rule. Rather, it finds constitutional protection for publication of intercepted information of a special kind. Here, the speakers' legitimate privacy expectations are unusually low, and the public interest in defeating those expectations is unusually high. Given these circumstances, along with the lawful nature of (the defendants’) behavior, the statutes' enforcement would disproportionately harm media freedom.

Id. at 540.

AB 761 is not solely a “media” concern, however. Whistleblowers employed in medical facilities—nurses, for example—are already punishable for recordings they make of conversations with physicians, surgeons or pharmacists, for example, that document the latter’s practices which are not only illegal but dangerous to patients or to public health. While the whistleblower’s expected priority may be to bring such information to the facility’s chain of command or even to law enforcement authorities, if those options were unavailing, the only recourse might be the press.

Common Cause's interest in stopping the creation of fabricated exposés by bogus whistleblowers is understandable, but should not result in jeopardy for authentic whistleblowers who already are exposed to serious risks in reporting authentic wrongdoing.