A&A: Can I use audio clips of solicitors refusing to be interviewed?

Q: I’m a journalist at a radio station doing a story about people who are soliciting money pledges for various causes on the local university campus, outdoors, in public.   I approached them with a recorder, identified myself as a radio reporter and started asking them questions. Their response was, “I dont want to answer any questions!”

Is it legal to include that audio clip in my story, which would air on the radio? Or am I not allowed to, since they did not consent to be audio recorded? I know that california law requires two-party consent for audio recording, but I’m confused as to how this would relate to journalists in public spaces recording people.

A: California law prohibits the use of covert technology for eavesdropping on, or recording, a “confidential communication” without the consent of all parties to the conversation.  Penal Code § 632(a).  A “confidential communication” is defined as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  Penal Code Â§ 632(c).

It would seem that in the situation you describe – approaching individuals in public with your recording equipment and announcing you are a journalist, and then using any material captured by your equipment in an on-air news story – probably would not expose you to liability under this statute, since it doesn’t seem that the conversation between you and these individuals would be a “confidential communication.”  See, e.g., Wilkins v. Nat’l Broad. Co., Inc., 71 Cal. App. 4th 1066, 1080 (1999) (a sales pitch secretly videotaped at a restaurant between salesmen and undercover Dateline NBC producers was not a “confidential communication” under the statute given the circumstances, particularly since the sales pitch was not a trade secret and the salesmen did not lower their voices or stop the sales pitch when others at the restaurant, in particular the waiters, approached the table).

So long as the recording takes place in a public setting, and the individuals know that you are recording the conversation, it would not seem that anything they say could be remotely construed as “confidential.”

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.