Our guest blogger is Peter Swire, a Senior Fellow at the Center for American Progress and a professor of law at the Ohio State University.
The secret tape recording – was it illegal? Maybe yes (if they find who did it). But there are some intriguing defenses for the person who made the tape of Mitt Romney saying that 47 percent of Americans are “dependent upon government” and see themselves as “victims.”
At first read, the Florida wiretap law looks like it applies. Florida prohibits “interception” of oral communications, including a tape recording in person. Florida also requires consent from all parties before an oral communication can be recorded. Mitt Romney didn’t consent to the taping. So the person who made the tape could face criminal charges, likely a misdemeanor for a first offense.
But the unknown person who made the tape has at least three defenses. The first two defenses depend on interpreting Florida’s Section 934.02:
“Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.
The first defense would argue that Romney was making a “public oral communication” at a “public meeting.” The tape was made at an official campaign fundraising event, so perhaps that is a big enough venue to count as “public.” On the other hand, the campaign appears to have tried hard to exclude all reporters and other members of the general public, so this defense seems fairly weak.
The second defense is more interesting. Did Romney have a justified “expectation” that no one would tape his speech before the packed room? In some earlier decade, the chances of a hidden recording device might have seemed remote. Today is different, though. Lots of people now carry video/audio recording devices. We call them “smartphones” and “laptops.” With changing technology, there is a strong argument that Romney assumed the risk that a staffer, guest, or server was recording his speech.
Third, the person who made the tape could argue that he or she was exercising First Amendment rights of freedom of speech and the press. Romney was making important remarks about the election – the core protected area of the First Amendment.
The First Amendment case law provides excellent protection for Mother Jones, who released the video. In the 2000 Bartnicki case, the Supreme Court held that the First Amendment protects the disclosure of illegally intercepted communications by a radio station and newspapers who did not participate in the illegal interception.
We don’t know whether the Bartnicki protection will extend to the person who taped and reported about Romney’s remarks. Linda Tripp was prosecute under Maryland’s all-party consent law for taping a call with Monica Lewinsky. Will Romney’s taper be far behind?