In taping a reporter, AG Brown’s spokesman showed bad judgment, but did he break the law?

BY PETER SCHEER — Attorney General Jerry Brown’s spokesman Scott Gerber was unceremoniously “disappeared” from Brown’s incipient gubernatorial campaign this week because of a lapse in judgment that, quite frankly, has been overblown. Gerber’s mistake: to surreptitiously record a  phone conversation with a reporter,  which was later discovered because Gerber, in a plea for changes to the story,  presented an editor with verbatim quotes too extensive and accurate to be the result of efficient note-taking alone.

Gerber should have asked the reporter, Carla Marinucci  of the San Francisco Chronicle, to consent to the taping of the interview–which involved, at Gerber’s end of the conversation, two other Brown aides who were also participating in the phone call. The undisclosed taping of a phone conversation with a journalist is viewed as sleazy and a breach of journalistic protocol.  But it is not necessarily illegal, contrary to the assumptions of many journalists.

California law prohibits the recording–without consent of all parties–of a “confidential communication.” (CA Penal Code Sec. 632(a)(emphasis supplied)). Journalists have been taught by lawyers over many years that they should avoid all nonconsensual taping of interviews. But lawyers are overly cautious by nature.

To anyone who has ever been interviewed by a journalist, it is obvious–in retrospect, perhaps painfully so–that, absent an agreement that the conversation is “off the record,” the comments of the interview subject are anything but confidential.

Talking to a reporter on the phone (or in person) is about as open and nonconfidential  an exchange as sitting for a live television interview or typing into a blog on a public, unrestricted website. The whole point of a conversation with a print journalist is to provide her with information to be communicated to her paper’s entire readership. A genuinely confidential communication with a reporter is the rare exception, not the rule.

The sleaze factor that is associated with surreptitious taping derives, I suspect, from the historic revelations about Richard Nixon’s taping of conversations, with both friend and foe, in the Oval Office. Before Nixon gave the practice a bad name, many journalists taped interviews (with or without consent) in order to create the most accurate record possible, not to engage in a game of “gotcha” with sources. Watergate changed the rules of appropriate journalistic inquiry.

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 journalists.

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.

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CORRECTION
As several readers pointed out in emails to me, I overstated my case in saying that the surreptitious taping of an on-the-record phone conversation between a reporter and a news source is “rarely, if ever illegal.” In 2002, in a case that did not involve a journalist, the California Supreme Court, interpreting section 632, held that a communication is confidential if one party to a phone conversation has “an objectively reasonable expectation that the conversation is not being overheard or recorded.” Flanagan v. Flanagan.

Although it is questionable whether the Court would reach the same conclusion today in a media case,  journalists should desist from secretly recording conversations not only for ethical reasons, but because such behavior could expose them to a potential criminal charge under section 632.  As for Gerber, AG Brown’s spokesman? His recording, while sleazy, is still legally ambiguous, in my view, because of the presence of other Brown aides on the call. That factor is inconsistent with the idea that any participant reasonably expected that the conversation was not “overheard.”–Peter Scheer

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Peter Scheer is Executive Director of FAC.

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