FREE PRESS — Was the practice of Attorney General Jerry Brown's former press spokesman quietly to tape record his phone discussions with inquiring reporters a violation of California law?  No, say the A.G.'s office and the First Amendment Coalition, in a rush to exoneration that ignores a central court decision.

As noted in today's Bakersfield Californian editorial, the party line from Brown's office—understandably—is that while former Communications Director Scott Gerber violated office policy in taping conversations with reporters without their knowledge, the practice did not violate the law.

In his resignation letter, Gerber admitted regularly tape recording
his conversations with reporters. But he said his superiors, including
AG Brown, did not know about the practice.

The AG's Office issued a statement Tuesday denying a crime had been
committed. The statement noted the highest-ranking criminal lawyer in
the office had concluded the law only prohibits the recording of a
"confidential" communication without consent. Since Gerber was having
an "on the record" interview, the communication was not "confidential."

A similar line is taken by Peter Scheer, executive director of the First Amendment Coalition:

The prevailing presumption today is that interviews are not recorded
unless all parties to the conversation explicitly agree otherwise.
Although this presumption may be a bit quaint in the YouTube era–in
which celebrities are always at risk, in public settings, of having a
candid moment converted into an embarrassing video that goes viral
online–it is, in fact, a presumption strictly observed by all serious

As it should be.  Ethically speaking, there is no adequate reason to
tape secretly. But it’s important to bear in mind that undisclosed
taping by a journalist–or by the person being interviewed by a
journalist–is rarely, if ever, illegal.

Case law does not support these conclusions; it contradicts them. In 1998 the U.S. Ninth Circuit Court of Appeals, interpreting California law, held that there was no liability for violating Penal Code Section 632—the covert taping prohibition—when a flight attendant scheduled as a witness in the O.J. Simpson murder case was interviewed on her own front doorstep by a television reporter who disclosed himself as such, but used a concealed microphone on his person and a camera hidden in a parked car to record the interview. In Deteresa v. ABC, Inc., 121 F.3d 460, the court held that in speaking to an identified reporter, she could not have reasonably expected that her words would not be divulged to other parties. 

The court predicted that it would be this standard—“Will my words be repeated to others?”—and not the competing interpretation—“Are my words being recorded?”— that would be adopted by the California Supreme Court as the key test for finding whether a plaintiff had a reasonable expectation of privacy under Section 632.  But the Ninth Circuit was wrong. Four years later, in a non-media case involving one party who taped his phone conversation with another party, the Supreme Court held that for purposes of Section 632, a communication is confidential if at least one party to a conversation has “an objectively reasonable expectation that the conversation is not being overheard or recordedFlanagan v. Flanagan, 27 Cal. 4th 766 (2002). (Emphasis added). 

The following year the California Court of Appeal dealt with a case in which two undercover journalists posing as patients made covert audio and video tapes of their visits to a doctor's office. The resulting broadcast story about his improper prescription practices ended the doctor’s career. The court, ruling on his Section 632 damages claim, cited Flanagan, concluding that the doctor’s “evidence demonstrates that he expected his communications to be private and did not expect them to be recorded.” It rejected the defendant TV station’s argument for a constitutional news gathering privilege, stating that the defendant “has not shown that the California Constitution or the United States Constitution requires the creation of a broad affirmative defense based solely upon a legitimate newsgathering motive, and we decline appellant's invitation to do so.” Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156.

Months later, in a ruling from the same appellate district, the journalistic recording of the anguished but unintelligible reactions of a couple first learning, by a phone call from a police officer, of their son's death from an apparent drug overdose was held to be a violation of Section 632—because their consent to record the call had not been obtained.  The court quoted Flanagan for the proposition that "eavesdropping or recording of conversations without consent is
prohibited '
regardless of whether the party expects that the content of
the conversation may later be conveyed to a third party.'"
Marich v. MGM/UA Telecommunications, Inc.,
113 Cal.App.4th 415.

Whether, as the Attorney General's office observes, a journalistic interview is "on the record" or not, court interpretations of Section 632 are such that a tape recording of the conversation by either party must be by mutual awareness and consent, and journalists need to be mindful that this is more than just a matter of ethical restraint.