Citizens’ Secret Recording and the First Amendment

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For over half a century, federal law and most states have regulated secretly recording speech over phone lines and in person by the government and private citizens. Recently, some of the most restrictive of these laws have been struck down on First Amendment grounds, and even some longstanding, widespread provisions are now subject to litigation. Steve Klein, partner at Statecraft PLLC and counsel to James O’Keefe, Project Veritas and Project Veritas Action Fund in several of these lawsuits, will discuss the constitutional and policy considerations of secret recording by citizens.

Featuring:

  • Steve Klein, Partner, Statecraft PLLC

 

Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech & Election Law Practice Group, was recorded on Thursday, August 15, 2019, during a live teleforum conference call held exclusively for Federalist Society members. 

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is on "Citizens' Secret Recording and the First Amendment." My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are very fortunate to have with us Mr. Steve Klein, who is a Partner at Statecraft PLLC and a member of our Free Speech Practice Group Executive Committee. After our speaker gives his remarks today, we will have an audience Q&A, so please keep in mind what questions you have for him, possibly humorous, relating to the topic today. This call is being recorded to be made into a podcast, so please keep that in mind. Thank you very much for sharing with us today. Steve, the floor is yours.

 

Stephen Klein:  Thanks a lot, Wesley, and thank you to the audience for joining me today. My presentation revolves around three lawsuits in which my clients, Project Veritas or Project Veritas Action Fund, are parties. One is a preemptive constitutional challenge and does not need any disclaimer. In the other two, however, Veritas is a defendant. Those cases involve the civil provisions of secret recording statutes that we are challenging constitutionally, and I'll be discussing the details of those challenges. However, there are also a number of common law tort claims at issue in those latter two cases, and I will not be discussing those other claims today or facts of those cases beyond the constitutional matters.

 

      I expect most of the audience is familiar with Katz v. United States. Indeed, it is one of the few cases I actually recall learning about not just in law school or even in college, but in high school civics. In that 1967 decision, the Supreme Court ruled that under the Fourth Amendment, the government must obtain a warrant before electronically eavesdropping on a suspect in a public phone booth. The case gave rise to the reasonable expectation of privacy standard that continues to develop today in Fourth Amendment doctrine. However, the fallout of Katz was not just in regards to the Fourth Amendment. The development of eavesdropping technology caused a popular uproar in the late 1960s and early 1970s, in no small part because of the Katz decision.

 

      Just one year after the ruling, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, which, among other things, placed detailed warrant requirements on the federal law enforcement for the use of eavesdropping devices, whether for wire taps or other means of electronic surveillance. Most states followed suit with their own laws around the same time. For purposes of our discussion today, the law also placed restrictions on the use of secret recording by private citizens. This included outlawing wiretapping, that is, in large part, prohibiting the secret recording of the conversations that others are having over the phone, and electronic eavesdropping, that is, largely, secretly recording the oral communications of others.

 

      It is in the definition of oral communications that one finds early echoes of the Katz decision in the federal law. It reads, quote, "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," unquote. So a two-prong test is in the definition, one subjective and one objective. Application of this has often followed, though not directly paralleled, Fourth Amendment doctrine.

 

      But even so, there is an important caveat in federal law which generally permits a private citizen to secretly record conversations, whether on the phone or in person, when he or she is a party to the communication. And that is my focus today, the secret recording of oral communications to which the person recording the communications is a party and certain First Amendment considerations that go into regulating that specific activity.

 

      The first example I'll discuss arises from the case Project Veritas Action Fund v. Rollins currently on appeal to the Federal First Circuit. In summary judgement in district court, the case's title was subsumed by a companion case, and you'll find it under Martin v. Evans. But the Veritas case is much broader. It is a facial and as-applied challenge to the Massachusetts interception, that is, secret recording statute. Massachusetts law is unique in the United States in that it prohibits secret recording of oral communications by citizens under any circumstances. I did not misspeak; under any circumstances.

 

      To illustrate, let's take a realistic situation, one relating to employment law. Imagine an employee at a company in Boston is being terminated and believes it's because he's being discriminated against because of his age. If he uses his iPhone to secretly record his own conversation with his manager in his manager's closed office at work to get evidence that might support that suspicion, it is punishable as a felony with up to five years imprisonment and a $10,000 fine. The manager can also bring a civil lawsuit and recover actual and punitive damages along with attorney fees.

 

      Let's say that same employee were to catch that same manager off guard in a more public place, like a pub, and the employee were to record pertinent information in a situation where third parties, that is, other bar patrons, could easily overhear the conversation. Same result for the employee: prison, a fine, and the manager has a strong civil cause of action.

 

      Finally, let's leave the pub. If the manager downs a few beers, wanders down the street to Boston Common and starts bellowing out damning information that would help that employee's case in a situation with clearly no expectation of privacy whatsoever, if the employee secretly records it, it is still a felony punishable with up to five years imprisonment and a $10,000 fine. And the manager can still sue.

     

      I've described those scenarios in light of the expectation of privacy standard, but that is nowhere in Massachusetts law. Neither is an exception provided for single party consent. Unlike under federal law or the laws of most states, an oral communication in Massachusetts, and again, I'm reading the statute here, quote, "means speech, except such speech as is transmitted over the public airwaves by radio or other similar device," unquote. For a citizen to intercept an oral communication in Massachusetts, that is, to secretly hear or secretly record speech with a device, is a felony. Period.

 

      Now enter the First Amendment. Whether a citizen either records his own conversation or consents to someone else recording it, speech is being created. For that very reason, the First Amendment is implicated. The First Circuit has previously acknowledged this in cases relating to the open recording of police, including Glik v. Cunniffe in 2011 and again in Gericke v. Begin in 2014. But I don't know that it could be more tersely summarized than in this line from the Supreme Court in the Citizens United decision in 2010. Quote, "Laws enacted to control or suppress speech may operate at different points in the speech process," unquote. To restrict the operation of an audio recording device is like restricting the operation of a printing press, and such laws must meet some form of First Amendment analysis, either strict or intermediate scrutiny.

 

      For purposes of the Massachusetts law, the law appears to be facially content neutral. That is, no matter the content of the oral communications that someone secretly records, the restriction is the same. Thus, in our facial challenge, the district court applied intermediate scrutiny. Unfortunately, the judge concluded that the state's interest in protecting the privacy of citizens was an important governmental interest, with which I actually agree, and the laws means are substantially related to that interest, felonies and all, with which I disagree.

 

      Following dismissal of this facial challenge and discovery in our as-applied challenge to the law, the court found that as-applied to the secret recording of public officials engaged in their duties in public, a pretty narrow challenge, to be sure, the law is unconstitutional and issued a declaratory judgement earlier this year. The various commonwealth defendants in these consolidated cases have appealed this, and Project Veritas Action has appealed its facial challenge with briefing now scheduled in the First Circuit.

 

      The secret recording statute in Massachusetts is an extreme law, and we are confident in ultimately winning a facial ruling, whether under the scrutiny analysis or over breadth doctrine. The expectation of privacy standard is appropriate for laws that protect privacy and an appropriate, less restrictive alternative, even under intermediate scrutiny. With that said, it is also questionable, especially if we attack closer to Fourth Amendment doctrine. If a state may presume that one can expect someone who he is confiding in to keep something secret, certainly not, I would say, and whether recording as a party to a conversation, that is, making the most accurate account of what one hears, is something that can be constitutionally prohibited. We shall see.

 

      Now, it's time to turn back to federal law and shift to another case, Democracy Partners v. Project Veritas Action Fund, with summary judgement currently pending in D.C. District Court. The claims include civil actions under both federal and D.C. secret recording law. The D.C. law is practically a cut and paste of federal law.

 

      Now, I said earlier that federal law provides a single party consent exception, and D.C. law does as well. For any of you who have ever seen a Project Veritas video, that is almost universally their approach to secret recording. But I didn't quite give you a full read of the law. The exception under federal law in pertinent part reads as follows, quote, "It shall not be unlawful under this chapter for a person not acting under color of law to intercept an oral communication where such person is a party to the communication unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any state."

 

      Again, D.C. law is largely the same. Here, our First Amendment challenges begin with the vagueness doctrine. Again, this is a law that regulates the creation of speech and thus, the First Amendment analyses come into play. The vagueness doctrine is typically a due process concern, but when free speech is implicated, the Supreme Court has held that a more strict, the most strict, in fact, vagueness doctrine applies. This is because vague laws that govern speech activity cause citizens to steer so clear of the prohibition that free speech is inevitably sacrificed.

 

      The single party consent provision, or more precisely, the exception to single party consent, is so vague I'm not even sure how it applies. "It shall not be unlawful unless…" Is that a separate unique offense and civil cause of action under the law? Probably not because there is no separate penalty. But that doesn't really clarify things. Does recording as a party to an oral communication with bad purpose simply nix the single party consent exception and take us back to the expectation of privacy analysis that is in the definition of oral communication? If so, how does that make sense? If one, for example, secretly records for the purpose of blackmailing someone in the victim's own home, it might be a felony under federal and D.C. law. But conversely, it is okay under the law to secretly record with that same bad purpose if it's in a loud restaurant?

 

      Our vagueness challenge to the law hints at other First Amendment concerns. What is this exception about? Unlike the Massachusetts law, it seems almost impossible to apply the law without considering the content of what one actually records. Let's go back to a blackmail scenario. Would a prosecutor really bring criminal charges under this statue against a person who secretly recorded a conversation without listening to the recording to see if the recorded information could plausibly be used for the purposes of blackmail? I don't believe so. And though that may not be a facially content-based restriction, I don't believe the law can be justified without reference to the content of the regulated speech or content that one is seeking to record.

 

      Under strict scrutiny or even intermediate scrutiny, the governmental interests are also questionable. As noted in my vagueness discussion, where's the privacy interest here? Both laws have already determined that one can secretly record as a party in any circumstance. Is privacy really an interest because the purpose of the recording is to commit a crime or tort? Again, I really don't believe so. And again, under either strict or intermediate analysis, aren't those crimes or torts themselves the least restrictive means or less restrictive alternatives to foreclosing a permissive recording provision?

 

      Even assuming there's a governmental interest, the tailoring fares no better. Harking back to my earlier vagueness discussion, let's assume I'm right about the law and that if one records with the wrong purpose, then single party consent is void and the analysis falls back into an expectation of privacy analysis. Again, if the single party consent provision does not apply, recording in a situation with a subjective and objective expectation of privacy is a felony. So by secretly recording a speech activity with a merely tortious purpose, one can commit a felony. Balderdash. I dare say it even fails rational basis.

 

      My final point on the federal and D.C. single party consent provisions is to entertain that just maybe the recorded content means nothing. But that leaves the laws as nothing more than thought crimes. That is actually the status of the arguments in the Democracy Partners case. The plaintiffs argue that a Veritas journalist recorded for the wrong purpose, no content concerns whatsoever, and thus, the laws were broken. Unfortunately, precedent in D.C. federal court currently supports this theory. A tort need not even be completed to bring suit under the secret recording statutes.

 

      There are not many speech restrictions left standing like this where a speech activity may be punished solely on the basis of the speaker's intent, and the Supreme Court has not received them kindly in recent years. Fairly recently in Federal Election Commission v. Wisconsin Right to Life, the Court rejected a purpose-based theory for certain political speech that would make a political ad legal or illegal entirely on the speaker's purpose. Without a content-based hook, the secret recording laws do the same here. However you gage these laws, whether under the vagueness doctrine, strict or intermediate scrutiny, or thought crime, which I hope is just another way of saying strict scrutiny, the purpose-based exceptions to the law's single party consent provisions are ready to be struck down.

 

      Finally, I want to briefly discuss American Federation of Teachers Michigan v. Project Veritas. Naturally, this is taking place in Michigan. Michigan law has a distinct secret recording law, certainly not a copy and paste of federal law like D.C.'s. First, the offense itself in pertinent part reads, quote, "Any person who is present or who is not present during a private conversation and who willfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto is guilty of a felony punishable by imprisonment for not more than two years or by a fine of not more than $2,000 or both," unquote. At first glance, that seems cut and dry, and the private conversation definition has similarly tracked the expectation of privacy standard developed in cases under other secret recording statutes.

 

      But then there's that word eavesdrop, which has it's own definition under Michigan law. Quote, "Eavesdrop or eavesdropping means to overhear, record, amplify, or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse," unquote. It is not the most clearly written law, but for decades, it has been uniformly interpreted to stand for single party consent. That is, until now. Because the Michigan Supreme Court has not officially interpreted this provision under the Erie doctrine in Michigan Federal Court, the judge in the AFT Michigan case has interpreted the law to require the consent of all parties in a private conversation, whether the person recording is a party or not.

 

      The judge recognized the different interpretations and granted leave to Veritas to seek an interlocutory appeal, which we petitioned for in late June with the Federal Sixth Circuit Court of Appeals. The petition is still pending. If appeal is granted, I expect our interpretation and those of most courts, including, I should add, the Sixth Circuit, will be vindicated. But in the event it is not, we have now challenged the law in the district court as unconstitutionally vague under the due process clause and the First Amendment.

 

      Vagueness is usually measured under a person of ordinary intelligence standard. That is, a statute is void for vagueness when it fails to provide a person of ordinary intelligence fair notice of what is prohibited or is so standardless that it authorizes or encourages seriously discriminatory enforcement. If learned judges cannot agree on what is prohibited under the law, how is a person of ordinary intelligence supposed to figure it out?

 

      Obviously, this is a complex area of the law, and it's been my pleasure to help shine some First Amendment light on it. Should your private conversations, whether on the phone or in person or by other means, be shielded from third parties, that is, from actual eavesdropping? Of course. But that should not extend the parties to communications. Federal law and the majority of states, 38, I believe, recognize this as a matter of policy. But even as a constitutional matter similar to Fourth Amendment doctrine but with a healthy dose of the First Amendment, privacy should not prohibit private citizens from documenting their own conversations. Thank you.

 

Wesley Hodges:  Well, very good. Thank you so much, Steve, for your remarks. Here is our first caller.

 

Caller 1:  Hi. I think I'm a little bit familiar with the Democracy Partners case, and I think maybe some elucidation on the fact might be helpful. From what I understand, Veritas had somebody make a large donation to Democracy Partners. They had a conversation afterward in which they were able to place a so-called intern, a fraudulent intern. They entered the premises under these fraudulent circumstances. They were actually employed by Veritas to do this, quote, unquote, "research" and expose Democracy Partners by placing the intern, and then the intern recorded what they saw.

 

      And I guess what I'm asking is do you think that type of spycraft should be legal for reporters? If the shoe was on the other foot, and someone had infiltrated, say, the RNC or the Donald Trump campaign or any other Republican campaign, or The Federalist Society became an assistant to Leonard Leo under similar circumstances and recorded his conversations and then published them, do you think there any laws that could capture that behavior, and do you think there should be any laws that would capture that behavior and punish the person that engaged in it?

 

Stephen Klein:  Well, as I said at the outset, the summary judgement is pending. And you've mentioned a variety of other claims that have been brought. And I will say, broadly speaking, that, again, there are ample ways to prevent so-called spycraft. But it is our opinion that none were present in this case, and I should add that the public docket for summary judgement is available in that case with ample evidentiary record. So people are welcome to research that on their own.

 

Wesley Hodges:  Very good. Thank you, caller, for your question. Here's our next caller.

 

Aaron McFeeny (sp):  Hey, good afternoon. My name is Aaron McFeeny, and I'm really enjoying this conversation. I think I might have missed some things in your intro, sir, so I just want to make sure I'm tracking. I guess I was always under the impression that as long as one person was in the party of a conversation, let's say you're maybe at work or your own front yard, and you're having a conversation, and if you record that, or as long as one person that's in the conversation is recording it, that that is legal. Is that not the case, or do I have it backwards?

 

Stephen Klein:  Well, it differs jurisdiction by jurisdiction. As I discussed, under federal law, which covers the entire United States in this instance, it is generally a single party consent provision, but there is a lingering exception to the exception that we are challenging constitutionally. It's not moribund, but it has not been a very frequently utilized provision of the law. And that is the idea that, well, you were secretly recording with a criminal purpose or with a tortious purpose. So that is the part that we're challenging constitutionally under D.C. law and federal law.

 

      So otherwise, as I discussed, for example, in Massachusetts, there is no single party consent. There is no secret recording provided whatsoever. And this is upheld by the Supreme Court -- or the Massachusetts Supreme Judicial Court. Forgive me if I got that wrong. The highest state court upheld in the early 2000s in a case called Commonwealth v. Hyde, probably one of the most Kafkaesque set of facts I've ever read, a motorist was pulled over and believed he was being harassed by the cops. And this was the late '90s, so he still had a tape recorder on him. And he actually kept that hidden, I think in the door of the car or on his person and actually recorded his entire interaction with the cops. Believing he had been mistreated, he took the tape to the police station to complain, and they charged him with a felony under the law. Now, fortunately, he only ended up serving -- I think it ended up being probation for six months. He didn't actually catch a felony for that.

 

      But the Supreme Court upheld the challenge, and they said, "This is what the law says, and that's what it means." And they did not have any First Amendment concerns with that. So it's very much a jurisdiction by jurisdiction thing, and I would certainly never advise anyone to make those assumptions in utilizing the practice.

 

Aaron McFeeny:  Right. I guess that's the thing that really kind of surprises me. I mean, I can definitely understand if someone's using it in a criminal way or secretly recording somebody in a private moment or things like that. But I think the thing that strikes me so odd is in the case you just cited where you have a person that records an interaction and there's criminal or ethical -- or there's things going on that's not right. They bring that to the attention in the case of the law enforcement officer. And it almost seems just insane that the court or a court would turn around or anyone would turn around and say, "Okay, well, let's hide the bad behavior. Let's defend this and prosecute the good, the honest person here."

 

      I think that's the thing that really kind of fascinates me about the whole thing. It's how the court can't seem to see the difference. We have the spirit of the law, we have the letter of the law, and they're not always the same.

 

Stephen Klein:  Well, I couldn't agree more with your assessment that it's absurd, but I do think the tide is turning. And what it started with a few years back -- Massachusetts also has a kind of a, again, not extensive, but kind of a nasty history of enforcing its law even for open recording. And that was actually -- the Glik v. Cunniffe case was actually a civil rights act case brought against the Boston police officers who arrested somebody for recording them making an arrest, and it was an open recording. The guy -- they saw him doing it, and that's why they arrested him. And they charged him under the secret recording statute. So the idea was now -- the charges were thrown out, but then he brought a civil rights action, and that went up to the First Circuit. And they said, "No, this is a well-understood thing that citizens have a right to document public officials engaged in their public duties."

 

      The difference now with our Veritas case and the Martin v. Evans case, which was actually brought by the ACLU, the difference there is that this is about now the secret recording, which I think it's funny that the Glick case really puts that into perspective. Why wouldn't you openly record a police officer or government official? Well, because they might arrest you anyway.

 

Aaron McFeeny:  I thought throughout the country that the law was universal, as long as one person was present in the conversation. And that's just due to states that I've lived in. That was the law in those states. And I think back to times people I know, people or colleagues I've worked with, that had they not made a recording of that conversation of that interaction that they were in, they would have been just pulverized by the false accusations, allegations or statements they supposedly made in a conversation. But luckily, they had a recording that vindicated them.

 

      So to me, I'd see the protection of being able to do that -- I mean, at the end of the day, you're just documenting your First Amendment right if you're present in that conversation. So I don't know. I find it odd how some states -- how they interpret the law or the laws they have and how they apply it almost seems to be very unethical at the minimum. In a case like that, you're recording your very own conversation, particularly if you're in it. I can understand and agree that you walk into a boardroom and you put a tape recorder or some type of listening device, you bug it, and you're not there, and you're recording a private meeting of people and you're not in that, I can absolutely see that not being -- that being wrong, that definitely falling under the definition of spying. But recording a conversation that you're in, though -- yeah, I'm fascinated. It's going to be interesting to see how this case turns out.

 

Wesley Hodges:  Well, thank you, caller. Next caller, you are up.

 

Caller 3:  I wanted to ask about the distinction between government employees and private employees. It seems to me that your private employer is probably going to have a whole lot more control over your life and is probably much more likely to do things that you might want to record than a government employee. I'm wondering why the distinction has been made in law that government employees in the performance of their work can be recorded, whereas your private employer cannot.

 

      And the second thing I wanted to ask is when it comes to the vagueness component of this, isn't that false just by proving the tort first? And once you've proven a tort, now it's de facto criminal?

 

Stephen Klein:  All right. On that first part, I'd say, going to the Massachusetts challenge, the reason that was brought is, first of all, Veritas does numerous investigations relating to public officials. And even most -- a number of states, I believe Massachusetts included, includes political candidates as public officials, even before they've taken office. So that narrow challenge, that as-applied challenge, really fit easily into the Glik precedent. The idea that they're recording police officers -- that is the Martin v. Evans case. The ACLU really just went -- their clients just want to secretly record police. Veritas wants to go more broad than that, and ultimately, we did prevail in the declaratory judgement.

 

      So on the balance though, I do agree with you. That's why we've also brought the facial challenge to say that, look, you want to protect the privacy of citizens. Well, that's fine, but there has to be some kind of buttresses on that. Perhaps the greatest irony is that the secret recording statute, to its credit in Massachusetts, is actually fairly restrictive of police use. They're very limited. It's not like police can just go get a wire to investigate any crime. In fact, it's really limited to the investigation of organized crime. So they have to not only convince a judge that, hey, we've got this really bad actor here. You have to kind of say that they're in a series of bad acts, like racketeering or things like that. And I still -- to me, this is my -- when I think about this, because this law was enacted in 1968 in Massachusetts, which includes Boston.

 

      And so speaking of organized crime, if you were running a shop in the 1970s or 1980s and Whitey Bulger were to come into your shop and try to shake you down, and he'd usually succeed, is my understanding, and you were to secretly record that for evidentiary purposes, you've committed a felony. That's how broad the Massachusetts law is. And moreover, there would be exclusionary rules that Bulger could use to keep those recordings out of any court proceedings. So yeah, I really try not to get too humorous or whatever about the law, but it really is just the -- if this one doesn't fall, then I think all of our other challenges probably fail.

 

      As to the vagueness issue, unfortunately, that's not the case. Really, the precedent in D.C. arising out of a still pending case -- if there was ever was a Dickensian case like Jarndyce and Jarndyce from the book Bleak House, it is probably the Council on American-Islamic Relations v. Gaubatz. This is a case that involved an undercover investigation, I think in 2008, into the Council by a citizen, not by an organization like Veritas. And it is just 10 years of motions to dismiss and summary judgement, and I think they're finally heading toward trial. I don't know. I haven't checked the docket lately.

 

      But in one of those summary judgement rulings, the judge said, "No. Look, all you had to do was be recording for the purpose," because they alleged in that case that the person was secretly recording for breaching fiduciary duty to care. But they already lost on the fiduciary duty claim. They were not able to establish any damages. But the judge nevertheless said, "No. Well, the secret recording provision stays because you had that -- we can still establish in front of a jury that you had that purpose."

 

      So I have other concerns on the vagueness, and this is a little bit of a mixing, blending together with this idea of prolix laws chill speech for the same reason that vague laws do because you have to guess as to their application. So when you have -- I don't know of many statutes that have this -- gun statutes, for example, that if you're using the gun in furtherance of committing a certain crime, and then they actually list what the cries are. Here, it's just any illegal act under the sun if you have that purpose, if you have that frame of mind.

     

      So I think that's a vagueness problem because who is going to ever engage in secret recording if they're required to know every law under the sun? I mean, I understand ignorance of the law is no excuse, but I also consider it the requirement to know every law before you engage in a First Amendment activity to be a prior restraint, basically. So I think that's kind of the vagueness issue. But I think it also speaks more broadly to what kind of -- how does this law actually operate? And again, it's funny. You litigate for two years, and it -- I'm still pretty confused.

 

Wesley Hodges:  Well, thank you so much for your question, caller. Here's our next caller.

 

Caller 4:  In Georgia, a leading candidate for the governor's position, the leading candidate, was recorded by another legislator in stating that the reason that he had made a certain legislative proposal was simply to pander to a certain group of people, and that he did not really support the idea at all. That was broadcast, and that ended this particular candidate's campaign, ended his quest. He was eliminated. Then in the succeeding legislative session, the majority party put forward a law that would change Georgia from a one party consent state to a two party consent state. Do we see that kind of movement anywhere else in the country?

 

Stephen Klein:  Thank you for letting me know. I actually wasn't familiar with that, so certainly worth following up. I think I'd heard about the recording but not about the effort to change the law. What we're, I think, seeing is -- and this, again, goes back to Massachusetts. And this is one of my favorite historical anecdotes is that undercover recording -- one of the first instances of it being used was when it came to audio visual. By this, I mean using a hidden camera.

 

      One of the most successful efforts, early efforts of this was a CBS documentary film called Biography of a Bookie Joint in 1961. There was a key shop in Boston's Back Bay neighborhood that was -- I mean, it was a legendary key shop. It had a thousand customers a day. I mean, how many people need to get keys cut? Well, not that many. What they were really visiting the shop for was to visit one of the three bookies taking bets in the back. It's about an hour long. You can find bootlegs of this documentary on YouTube, and maybe 2.5 minutes of this 45-minute documentary is hidden camera. Back then, cameras could not be made that small, so it was a guy literally had a lunchbox under his arm. And he walks in there, and he captures audio and video, or film, I think, of what's actually going on.

 

      So a few years later, when these laws are being passed and federal law for the Omnibus Act comes down, and they have single party consent, it's always struck me because keep in mind this bookie joint documentary had pretty far-reaching effects in Boston. It implicated police. It implicated even, I think, some legislators who were going and placing bets. So there was a lot of reverberation within the legislature. And I've always wondered, and I have not been able to prove, and keep in mind, it's decades ago, whether some of the legislators pulled a fast one when they passed the law to realize, "Yeah, man, we've got to ban all secret recording by citizens because we don't want that kind of investigation happening again." So I've always suspected that might be the case in Massachusetts, but I don't have any evidence of that. It just -- they couldn't have done it better if they wanted to.

 

      But as for Georgia, I have not heard of other examples of that, but I think it, again, it shows not just the -- certainly makes the public policy and the First Amendment interest all the more clear. There's a developing case right now in Texas. A political activist recorded a conversation with the, I believe, the Speaker of the Texas House. He kind of shrewdly went -- published that this guy told me he offered to give, I think, press credentials for if I would use my activist organization to go after only certain legislators. And the Speaker denied it. And well, it turns out this guy secretly recorded the conversation. And he has not released the secret recording, but apparently, he's played it for other people, which has caused the Speaker, I guess, to revise some of his denials, at the very least. So there's litigation about that. I think it's some zany campaign finance stuff, but under Texas law, I think it's pretty cut and dry on one party consent. But I really appreciate that info.

 

      And I should add that this kind of parallels, as far as secret investigations and by citizen groups or by more organized groups like Veritas, and this is certainly not a left/right thing or a political divide thing. It's worth looking at not just cases brought by Veritas or that Veritas is involved in, but the People for Ethical Treatment of Animals who still do slaughterhouse investigations, Humane Society investigations or adoption, also the Animal Legal Defense Fund. Environmental groups are utilizing a number of techniques. And say what you want about those organizations, but I don't think anyone's going to believe that they're part of a right-wing conspiracy.

 

      So where we've seen reactions, particularly on the environmental side, is in Western states. I remember in Wyoming when they passed this law, and it has since been struck down, was a trespass to collect data law. Some environmental groups would go onto private land and they would collect water samples and things like that which they would then send to the government. And Wyoming wanted more teeth in their trespass law, but they didn't want to just make it a general law. Rather, they passed laws that specifically targeted these activities which could include photography or any number of things that would fall pretty clearly under content creation.

 

      So those are little more cut and dry on First Amendment. You have that second prong, and this was reaffirmed in Reed v. Town of Gilbert. There's either facially content based or there is -- a law can't be justified unless you actually reference the content. And usually, and this happened, I think, in the Wyoming case and some others, what'll happen is a legislator will go on the record saying, "We've got to pass this to go after the environmental groups." So that really can get you into a good place on that content-based argument. Again, certainly sent one of my summer interns to look in the Massachusetts archives to try and see if anybody was blatantly on the record like that but had no luck. But really, again, thanks for that information.

 

Wesley Hodges:  Well, thank you, caller. And thank you, Steve. Again, this call is being recorded to be made into a podcast. You can check out this call as well as several of our previous calls on our website, on iTunes, Google Play. Any place you'll find podcasts, you'll find us there,  Federalist Society Teleforum. Well, seeing no more questions from the audience, and after such great discussion already, Steve, I'm going to turn the mike back to you. Do you have any closing thoughts or any bits you want to dive more deep in before we wrap up today?

 

Stephen Klein:  Thanks again, Wes. And thanks again to The Federalist Society for having me today. These are pretty really fascinating cases, and it's really -- particularly, thank you for the calls today to kind of get a sense of where other laws are going and certainly what people's impressions are when it comes to secret recording.

 

      What I did not discuss today -- there are other rich areas of secret recording that are definitely worth discussing. Electronic communications, for example, a term added to  federal law in the 1980s, is practically a practice area. Moreover, different restrictions placed on law enforcement for the use of wiretaps and bugging is fascinating as well. But those were not my focus today. I'm really focusing in on the secret recording of oral communications by private citizens, and I think the -- hope that you will take my First Amendment arguments under consideration. But again, thanks so much for having me.

 

Wesley Hodges:  Well, on behalf of The Federalist Society, I would like to thank you for the benefit of your very valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us for the call. We are now adjourned.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at www.fedsoc.org/multimedia.